Exhibit 10.10
MORTGAGE
THIS MORTGAGE is given on the 30th day of October, 1998, by SABAL
CORP., a Nevada corporation, having an address at 5830 XxXxxxx, No. 00
Xxxxxxxxxx, Xxxxx 000, Xxxxxx Xxxxxxx, XX 00000 ("MORTGAGOR"), to EXCAL
ENERGY CORPORATION, a Michigan corporation, having an address c/o MTR Gaming
Group, Inc., Xxxxx 0 Xxxxx, X.X. Xxx 000, Xxxxxxx, Xxxx Xxxxxxxx 00000
("LENDER").
FOR VALUE RECEIVED, Mortgagor mortgages and warrants to Lender
land located in the Township of Marathon, County of Lapeer, State of
Michigan, commonly known as 00000 Xxxxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxx 00000,
as more particularly described on Exhibit A hereto and (i) all buildings,
structures and other improvements now or in the future located on the land
and all easements, hereditaments and appurtenances now or in the future
belonging to the land, (ii) all fixtures now or in the future attached to or
used in connection with the land, (iii) all equipment (including, without
limitation, all machinery, engines, boilers, elevators and plumbing, heating,
air conditioning and ventilating equipment) now or in the future located on
the land, all of which equipment shall be considered to be fixtures and a
part of the realty, (iv) all rents, income and profits arising from the land
or from the buildings, structures, other improvements, fixtures and equipment
now or in the future located on the land and (v) all rights to make divisions
of the land that are exempt from the platting requirements of the Michigan
Land Division Act, as it shall be amended. In this Mortgage, the
above-described land, buildings, structures, improvements, easements,
hereditaments, appurtenances, fixtures and equipment are collectively called
"THE PREMISES."
THIS MORTGAGE SECURES PAYMENT AND PERFORMANCE OF ALL
INDEBTEDNESS AND OBLIGATIONS NOW AND IN THE FUTURE OWING TO LENDER BY
MORTGAGOR, INCLUDING ALL OBLIGATIONS OF MORTGAGOR UNDER THIS MORTGAGE. The
indebtedness and obligations now owing to Lender by Mortgagor include, BUT
ARE NOT NECESSARILY LIMITED TO, the indebtedness and obligations evidenced by
any promissory notes, guarantees and documents listed below.
NOTE, GUARANTY OR PRINCIPAL AMOUNT
DOCUMENT DATE (IF ANY)
----------------- ---- ----------------
Promissory Note October , 1998 $500,000.00
This Mortgage secures all present and future indebtedness and
obligations owing to Lender by Mortgagor, regardless of whether any such
indebtedness or obligation is (i) not listed above, (ii) not presently
intended or contemplated by Lender or Mortgagor, (iii) indirect, contingent
or secondary, (iv) unrelated to the premises or to any financing of the
premises by Lender, (v) of a
kind or class that is different from any indebtedness or obligation now owing
to Lender by Mortgagor, or (vi) evidenced by a note or other document that
does not refer to this Mortgage.
If Lender assigns this Mortgage and the indebtedness that is
secured by it at the time of the assignment, then this Mortgage shall also
secure all indebtedness and obligations then and in the future owing to the
assignee by Mortgagor. From and after the assignment, each reference in this
Mortgage to Lender shall be considered to refer to the assignee.
The indebtedness and obligations secured by this Mortgage are
collectively referred to in this Mortgage as the "INDEBTEDNESS."
Mortgagor further warrants, represents and agrees as follows:
1. PAYMENT OF INDEBTEDNESS. Mortgagor agrees to pay or perform
all of the Indebtedness now or in the future owing by Mortgagor, including
all interest on it, in accordance with the terms of the instruments,
documents or agreements evidencing it ("INSTRUMENTS").
2. WARRANTIES. Mortgagor warrants and represents to Lender as
follows:
(a) All financial statements and other information
concerning Mortgagor, the premises, any guarantor of any of the
Indebtedness and any person obligated on any of the
Indebtedness, that have been or in the future are furnished to
Lender, are and shall be true and correct in all material
respects.
(b) The execution, delivery and performance of this
Mortgage by Mortgagor will not violate any law, rule, judgment,
order, agreement or instrument binding upon Mortgagor and will
not require the approval of any public authority or any third
party, and this Mortgage is the valid and binding obligation of
Mortgagor, enforceable in accordance with its terms.
(c) Mortgagor is a corporation and is duly organized
and validly existing in good standing in the State of Nevada;
Mortgagor has full power and authority to carry on its business
as presently conducted and to enter into and perform its
obligations under this Mortgage; the execution, delivery and
performance of this Mortgage by Mortgagor have been duly
authorized by all necessary action of its board of directors
and will not violate Mortgagor's certificate of incorporation
or bylaws and will not require the approval of its shareholders.
3. ASSIGNMENT OF LEASES AND CONTRACTS. Mortgagor assigns and
mortgages to Lender, and grants to Lender a security interest in, as additional
security for the Indebtedness, all of Mortgagor's right, title and interest in
and to all existing and future oral or written leases of all or any part of the
premises or of any interest in them and all existing and future land contracts
or other agreements by which the premises or any interest in them is being or
shall be sold, together with all rents and profits arising from, and all other
proceeds of, those leases, land contracts or other
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agreements. Without the written consent of Lender, Mortgagor shall not
cancel, accept a surrender of, modify, consent to an assignment of the
lessee's interest under, or make any other assignment or other disposition
of, any lease, land contract or other agreement or of any interest of
Mortgagor in it and shall not collect or accept any payment of rent or of
principal or interest or any other amount more than one month before it is
due and payable. Mortgagor shall pay and perform all obligations and
covenants required of Mortgagor by the terms of each lease, land contract or
other agreement. If Mortgagor shall default in the payment or performance of
any obligation or covenant, then Lender shall have the right, but shall have
no obligation, to pay or perform it on behalf of Mortgagor, and all sums
expended by Lender in doing so shall be payable by Mortgagor to Lender upon
demand, together with interest at the lesser of (i) five percent above the
rate of interest payable under the Promissory Note secured by this Mortgage,
or (ii) the highest rate to which Mortgagor could lawfully agree in writing
("DEFAULT RATE"). Neither this paragraph nor PARAGRAPH 10 of this Mortgage
implies that Lender consents to the sale, lease or transfer of the premises
or any interest in them.
4. MINERALS. Mortgagor assigns and mortgages to Lender, and
grants to Lender a security interest in, as additional security for the
Indebtedness, all of Mortgagor's right, title and interest in and to (i) all
oil, gas and other minerals located in, on or under the premises subject to
any oil, gas or mineral leases in effect with respect to such oil, gas or
other minerals, (ii) all oil, gas or mineral leases, royalty agreements and
other contracts that have been or in the future are entered into with respect
to the premises or with respect to any oil, gas or other minerals located in,
on or under the premises ("MINERAL LEASES"), and (iii) all rents, profits,
royalties and income at any time arising from the Mineral Leases or from the
sale of oil, gas or other minerals located in, on or under the premises.
Upon the occurrence of an event of default as defined in PARAGRAPH 14 of this
Mortgage, Lender shall be entitled to the present and full possession,
receipt and use of and right to such oil, gas, other minerals, Mineral
Leases, rents, profits, royalties and income, for application to the
Indebtedness in any manner that Lender in its sole discretion shall determine.
5. TAXES AND INSURANCE. Mortgagor shall pay, or cause to be paid,
before they become delinquent, all taxes, assessments and other similar
charges levied upon or with respect to the premises and shall promptly
deliver to Lender satisfactory evidence of payment of them. Mortgagor shall
cause all buildings, improvements and other insurable parts of the premises
to be insured against loss or damage by fire, by hazards included within
extended coverage and by other risks that Lender from time to time requires,
in amounts and with insurers that are acceptable to Lender, and Mortgagor
shall cause all premiums on the insurance to be paid when due. Lender shall
not, however, require hazard insurance covering any building or buildings
that are part of the premises to be in an amount greater than the replacement
cost of the building or buildings. Within 45 days after Lender notifies
Mortgagor that the premises are located in a special flood hazard area but
are not covered by flood insurance in the amount required by applicable law
(including, without limitation, the federal Flood Insurance Act of 1968, as
amended), Mortgagor shall obtain and at all times maintain in effect the
required insurance. Each policy evidencing insurance required by this
Paragraph shall provide that loss shall be payable to Lender as its interest
shall appear at the time of the loss, shall contain a standard mortgage
clause, shall be in form and substance acceptable to Lender and shall be
delivered to Lender. Each policy shall provide that the insurer shall give
Lender
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at least 10 days' prior written notice of any cancellation of or any material
change in the insurance. Each renewal of each policy shall be delivered to
Lender at least 10 days before the expiration date of the policy. Upon
foreclosure of this Mortgage or other transfer of the premises in
satisfaction of the Indebtedness, all right, title and interest of Mortgagor
in and to any insurance policies then in force, including the right to any
premium refund, shall vest in the purchaser or grantee. If there shall occur
any destruction of or damage to the premises, Mortgagor shall give immediate
notice to Lender, and Lender shall have the right to make proof of the loss
or damage, if Mortgagor does not promptly do so. Lender is authorized to
settle, adjust or compromise any claims for loss or damage under any
insurance policy. Mortgagor shall immediately endorse and deliver to Lender
all proceeds of any policy. Lender may require Mortgagor to pay a reasonable
fee to Lender for determining whether the premises are located in a special
flood hazard area, if either (i) Lender undertook the determination because
of a revision of floodplain areas or (ii) Lender purchased required flood
insurance, under PARAGRAPH 8 of this Mortgage, after Mortgagor failed to
purchase the required insurance following Lender's notification to Mortgagor
that Mortgagor was required to do so.
6. ESCROW. Upon request by Lender, Mortgagor shall pay to Lender
periodically, on each date that Lender shall designate, an amount equal to
(i) the amount that Lender from time to time estimates will be sufficient to
permit Lender to pay each annual tax, assessment and any other similar charge
levied upon or with respect to the premises and each premium for flood
insurance covering the premises, at least 30 days before it is due and
payable, divided by (ii) the number of regularly-scheduled payments upon the
Indebtedness that will occur between (A) the date of Lender's request, the
date of any new estimate by Lender of the amount of the annual tax,
assessment, other charge or flood insurance premium, or the date when Lender
last paid the tax assessment, other charge or flood insurance premium on
behalf of Mortgagor (whichever is applicable), and (B) the thirtieth day
before the tax, assessment, other charge or flood insurance premium will be
due and payable. Upon demand by Lender, Mortgagor shall pay to Lender any
additional sums that are necessary to make up any deficiency in the amount
necessary to enable Lender to pay fully those taxes, assessments, other
similar charges and flood insurance premiums when due. All sums that
Mortgagor pays to Lender under this paragraph may be commingled with the
general funds of Lender, and no interest shall be payable to Mortgagor with
respect to them. If an event of default, as defined in PARAGRAPH 14 of this
Mortgage, occurs, then Lender may apply any funds of Mortgagor it then holds
under this paragraph against the Indebtedness, in any manner that Lender
shall determine.
7. MAINTENANCE AND REPAIR. Mortgagor shall maintain the premises
in good condition and repair; shall not commit or suffer any waste of the
premises; shall not remove, demolish or substantially alter any building or
fixture on the premises without the prior written consent of Lender; shall
cause to be complied with all laws, ordinances, regulations and requirements
of any governmental authority applicable to the premises or to activities on
the premises; shall promptly repair, restore, replace or rebuild any part of
the premises that is damaged or destroyed by any casualty; and shall promptly
pay when due all charges for utilities and other services to the premises.
8. LENDER'S RIGHT TO PERFORM; RECEIVER. If Mortgagor shall
default in the performance of any obligation of Mortgagor under this Mortgage
(including, without limitation, its
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obligations to keep the premises in good condition and repair, to pay taxes
and assessments and to obtain and maintain insurance), then Lender shall have
the right, but shall have no obligation, to perform, or cause to be
performed, the obligation, and Mortgagor shall reimburse Lender on demand for
all sums expended by Lender in doing so, together with interest at the
Default Rate. Lender and any persons authorized by Lender shall have the
right to enter upon the premises at all reasonable times for the purpose of
inspecting the premises or effecting maintenance or repairs or taking any
other action under the preceding sentence. The failure of Mortgagor to pay
any taxes, assessments or similar charges upon the premises when due or to
obtain and maintain required insurance shall constitute waste and shall
entitle Lender to the appointment by a court of competent jurisdiction of a
receiver of the premises for the purpose of preventing the waste. The
receiver, subject to the order of the court, may collect the rents and income
from the premises and exercise control over the premises as the court shall
order. Any payment or performance by Lender, under PARAGRAPH 3 of this
Mortgage, of an obligation that Mortgagor has failed to perform under a
lease, land contract or other agreement, and any exercise by Lender of any
right, remedy or option under a lease, land contract or other agreement,
shall not be considered an assumption by Lender of the lease, land contract
or other agreement or of any obligation or liability under it.
9. CONDEMNATION. If all or any part of the premises is taken,
whether temporarily or permanently, under power of eminent domain or by
condemnation, the entire proceeds of the award or other payment for the
taking shall be paid directly to Lender.
10. SALE OR TRANSFER. If there shall be a sale or transfer, by
operation of law or otherwise, of all or any part of the premises, Lender may
deal with the buyer or transferee with respect to this Mortgage and the
Indebtedness as fully and to the same extent as it might with Mortgagor,
without in any way releasing, discharging or affecting the liability of
Mortgagor under this Mortgage and upon the Indebtedness.
11. PROPERTY INFORMATION. During any period when any part of the
premises is leased, Mortgagor shall promptly furnish to Lender, upon Lender's
request from time to time, (i) copies of all leases then in effect with
respect to all or any part of the premises, including all amendments, (ii) a
written schedule that shows for each tenant the tenant's name, the current
rental rate (including any percentage rent), any rental or leasing
concessions, the units or area leased and the lease expiration date, (iii) a
description of any parts of the premises that are not then leased, (iv)
detailed financial statements relating to the premises, prepared in
accordance with generally accepted accounting principles, for the periods and
as of the dates that Lender shall require, which statements shall show,
without limitation, all income and expenses, capital expenditures, tenant
improvements, leasing commissions, and all indebtedness secured by mortgages
or liens upon the premises, and (v) any additional information concerning the
premises and the leasing of them that Lender shall request. Lender shall
have the right at any reasonable time (whether or not any part of the
premises is then being leased) to inspect and make copies of Mortgagor's
records concerning the premises and any lease of or other transaction or
matter concerning the premises.
12. ENVIRONMENTAL AND ACCESS LAW WARRANTIES AND AGREEMENTS.
Mortgagor warrants and represents to Lender, and agrees, as follows:
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(a) Mortgagor, the premises and all activities of
Mortgagor and all other persons on the premises are and shall
continue to be in compliance with all environmental laws and
all access laws. No part of the premises is or shall in the
future be used as a "public accommodation," as defined in the
federal Americans With Disabilities Act, as amended. The
premises are not and shall not become a site or source of
environmental contamination. Except as expressly and
particularly disclosed in that certain Phase I Environmental
Site Assessment dated as of April 2, 1997 and that certain
Phase II Environmental Site Assessment dated as of May 21, 1997
(collectively, the "Assessments") delivered by Mortgagor to
Lender, (i) no asbestos or polychlorinated biphenyls are
present on or contained in the premises, and (ii) the premises
do not presently contain an underground storage tank and have
never contained an underground storage tank except as expressly
and particularly disclosed in the Assessments.
(b) In this Mortgage, (i) "ENVIRONMENTAL LAW" means
at any time any applicable federal, state, local or foreign law
(including common law), ordinance, rule, regulation, permit,
order or other legally binding requirement that then (A)
regulates the quality of air, water, soil or other
environmental media, (B) regulates the generation, management,
transportation, treatment, storage, recycling or disposal of
any wastes, (C) protects public health, occupational safety and
health, natural resources or the environment, or (D)
establishes liability for the investigation, removal or
remediation of, or harm caused by, environmental contamination;
(ii) "HAZARDOUS SUBSTANCE" means at any time any substance,
material or waste that is then subject to or regulated by any
environmental law, (iii) "ENVIRONMENTAL CONTAMINATION" means
the presence of a hazardous substance in or on, or the release,
discharge or emission of a hazardous substance from, the
premises in excess of any limit or criterion established or
issued under any environmental law, and (iv) "ACCESS LAW" means
at any time any applicable law, ordinance, rule, regulation or
order that then regulates the accessibility of property to
disabled persons, including, but not limited to, the federal
Americans With Disabilities Act, as amended.
13. ACCESS TO PREMISES. Lender and any persons authorized by
Lender shall have the right to enter upon the premises at all reasonable
times for the purpose of (i) appraising the premises, (ii) investigating
(including, without limitation, sampling soil, water and air) whether the
premises and activities upon them are in compliance with environmental laws
and access laws and whether the premises are a site or source of
environmental contamination or (iii) removing or remediating any
environmental contamination. Without limiting the foregoing, Lender shall
have the right to conduct and submit to appropriate governmental agencies a
"baseline environmental assessment" of the premises within the meaning of
Section 20101 of the Michigan Natural Resources and Environmental Protection
Act, MCL 324.20101, as it shall be amended from time to time. If, at the
time of the appraisal, investigation, assessment, removal or remediation,
there shall have occurred and be continuing an event of default, as defined
in PARAGRAPH 14 of this Mortgage, then Mortgagor shall reimburse Lender on
demand for all costs and expenses of the appraisal, investigation,
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assessment, removal or remediation, together with interest at the Default
Rate. Mortgagor shall consent to any consultant contract, waste manifest,
notice and other documents that Lender reasonably requests to enable Lender
to take or conduct any action or activity contemplated by this paragraph, if
Mortgagor is given a reasonable opportunity to negotiate the terms of the
contract, manifest, notice or other document.
14. EVENTS OF DEFAULT AND ACCELERATION. Upon the occurrence of any
of the following events of default, all or any part of the Indebtedness
shall, at the option of Lender, become immediately due and payable without
notice or demand:
(a) If default occurs in the payment or performance of any
of the Indebtedness, when and as it shall be due and payable, whether
at Maturity or otherwise.
(b) If default occurs in the performance of any other
obligation to Lender under any Instrument or under any other mortgage,
security agreement, loan agreement, assignment, guaranty or other
agreement that now or in the future secures or relates to any of the
Indebtedness or that evidences, secures or relates to any guaranty of
any of the Indebtedness ("SECURITY DOCUMENTS") or if default occurs in
the performance of any obligation to Lender under this Mortgage,
whether or not Lender shall have performed the obligation on
Mortgagor's behalf, under PARAGRAPH 8 of this Mortgage, and whether or
not Mortgagor shall have reimbursed Lender for any payments or
expenses it incurred in curing the default.
(c) If any warranty, representation or statement that has
been or is in the future made to Lender by Mortgagor or by any
guarantor of all or part of the Indebtedness ("GUARANTOR") in this
Mortgage or in any Security Document, credit application, financial
statement or otherwise, shall have been false in any material respect
when made or furnished.
(d) If Mortgagor shall default in payment of the principal
of or interest on any indebtedness for borrowed money now or in the
future owed to any person other than Lender.
(e) If Mortgagor or any Guarantor or any of the partners of
a Guarantor that is a partnership shall dissolve, become insolvent or
make an assignment for the benefit of creditors.
(f) If all or any material part of the premises shall be
damaged or destroyed by fire or other casualty, regardless of
insurance coverage for the loss, or shall be taken by condemnation or
power of eminent domain.
(g) If any law or government regulation shall impose a tax
or assessment upon mortgages or debts secured by mortgages.
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(h) If any guaranty that now or in the future secures
payment or performance of all or any part of the Indebtedness shall be
terminated or limited, for any reason, without the written consent or
agreement of Lender.
If a voluntary or involuntary case in Bankruptcy or
receivership shall be started by or against Mortgagor or any Guarantor or any
partner of any Guarantor that is a partnership, then the entire Indebtedness
shall automatically become immediately due and payable, without notice or
demand. All or any part of the Indebtedness also may become, or may be
declared to be, immediately due and payable under the terms and conditions
contained in any Security Document, Instrument or other agreement that at any
time evidences, secures or relates to the Indebtedness.
15. REMEDIES. Lender shall have all rights and remedies given by
this Mortgage or otherwise permitted by law. In addition, if the
Indebtedness shall not be paid at Maturity, Lender shall have the right and
is authorized:
(a) To collect and receive all rents, profits and other
amounts that are due or shall in the future become due under the terms
of any leases, land contracts, Mineral Leases, or other agreements,
now or later in effect, by which the premises or any interest in them
are then being sold or leased, and to exercise any other right or
remedy of Mortgagor under any lease, land contract, other agreement or
Mineral Lease; but Lender shall have no obligation to make any demand
or inquiry as to the nature or sufficiency of any payment received or
to present or file any claim or take any other action to collect or
enforce the payment of any amounts to which Lender may become
entitled, and Lender shall not be liable for any of Mortgagor's
obligations under any lease, land contract, other agreement or Mineral
Lease.
(b) To obtain or update abstracts of title, title searches,
title insurance and surveys with respect to the premises, and
Mortgagor shall reimburse Lender for all costs of doing so, together
with interest at the Default Rate.
(c) To foreclose this Mortgage by action under applicable law.
(d) To sell, release and convey the premises at public sale,
and to sign and deliver to the purchasers at the sale good and
sufficient deeds of conveyance, paying any surplus funds, after
payment of the Indebtedness in full and the expenses of the sale,
including attorney fees as provided by law, to Mortgagor, all in
accordance with Chapter 32 of the Michigan Revised Judicature Act, as
it may be amended from time to time, and any similar statutory
provisions that may in the future be enacted in addition to Chapter 32
or in substitution for it. The premises may, at the option of Lender,
be sold in one parcel.
All rights and remedies of Lender under this Mortgage, whether
or not exercisable only on default, shall be cumulative and may be exercised
from time to time, and no delay by Lender in the exercise of any right or
remedy shall be a waiver of it, and no single or partial exercise of any
right or remedy shall prevent other or further exercise of it or the exercise
of any other right or remedy, except to the extent otherwise provided by law.
In this Mortgage, "MATURITY" means the
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time when the Indebtedness shall be or shall become due and payable, whether
by the terms of the Instruments or under PARAGRAPH 14 of this Mortgage or
otherwise.
16. SECURITY INTEREST IN FIXTURES. Mortgagor grants to Lender a
security interest in all fixtures now or in the future located on the
premises. If the Indebtedness is not paid at Maturity, Lender, at its option,
may enforce this security interest in fixtures under the Michigan Uniform
Commercial Code or other applicable law or may include fixtures in any
foreclosure of this Mortgage under PARAGRAPH 15 of this Mortgage. Any
requirement of reasonable notice with respect to any sale or other
disposition of fixtures shall be met if Lender sends the notice at least 10
days before the date of sale or other disposition.
17. INDEMNIFICATION. Mortgagor shall indemnify and hold harmless
Lender with respect to any and all claims, demands, causes of action,
liabilities, damages, losses, judgments and expenses (including attorney
fees) that shall be asserted against or incurred by Lender by reason of (i)
any representation or warranty by Mortgagor in this Mortgage being inaccurate
in any respect, (ii) any failure of Mortgagor to perform any of Mortgagor's
obligations under this Mortgage, or (iii) any past, present or future
condition or use of the premises which has not been disclosed to Lender in
the Assessments (whether known or unknown), other than an excluded condition
or use, including, but not limited to, liabilities arising under any
"environmental law," as defined in PARAGRAPH 12 of this Mortgage. An
"EXCLUDED CONDITION OR USE" is one that both (A) does not exist or occur, to
any extent, at any time before Mortgagor has permanently given up possession
and control of the premises by reason of a foreclosure of this Mortgage or
Lender's acceptance of a conveyance of the premises to Lender in lieu of
foreclosure and (B) was not caused or permitted to exist, in whole or part,
by any act or omission of Mortgagor. Indemnification by Mortgagor under this
paragraph shall not limit any other right or remedy (including Lender's right
to accelerate payment of the Indebtedness) that is available to Lender by
reason of the circumstance in respect of which indemnity is made.
Mortgagor's obligations under this paragraph shall survive foreclosure of
this Mortgage and any conveyance of the premises in lieu of foreclosure.
If any action, suit, investigation or proceeding (an "Action")
shall be threatened or commenced by a third party in respect of which the
Lender may make a claim for indemnification hereunder, the Lender shall
notify Mortgagor to that effect with reasonable promptness (so as not to
prejudice Mortgagor's rights) after the commencement or threatened
commencement of such Action, and Mortgagor shall have the opportunity to
defend against such Action (or, if the Action involves to a significant
extent matters beyond the scope of the indemnity contained herein, those
claims that are covered hereby). If Mortgagor elects to defend against any
Action, (or, as described in the preceding parenthetical, one or more claims
relating thereto), Mortgagor shall notify Lender to that effect with
reasonable promptness. In such case, the Lender shall have the right to
employ its own counsel and participate in the defense of such matter, but the
fees and expenses of counsel shall be at the expense of the Lender unless the
employment of such counsel at the expense of Mortgagor shall have been
authorized in writing by Mortgagor. Whichever party is granted the right to
direct the defense of an Action shall: (i) keep the other fully informed of
material developments in the Action at all stages thereof; (ii) promptly
submit to the other copies of all pleadings, responsive pleadings, motions
and other similar legal documents and papers received in connection
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with the Action; (iii) permit the other and its counsel, to the extent
practicable, to confer on the conduct of the defense of the Action; and (iv)
to the extent practicable, permit the other and its counsel to review all
legal papers to be submitted prior to their submission.
18. WAIVERS.
(a) Mortgagor and any other person who in the future obtains
a mortgage or lien upon, or any other interest in, the premises
waives, with respect to any foreclosure of this Mortgage, (i) any
right to marshaling of the premises and any right to require a minimum
bid or "upset" price, and (ii) the benefit of any stay, extension,
exemption or moratorium law, now existing or enacted in the future.
(b) Lender may at any time release all or any part of the
premises from the lien of this Mortgage or release the liability of
any person for the Indebtedness, with or without consideration and
without giving notice to, or obtaining the consent of, the holder of
any mortgage or lien upon, or other interest in, the premises. A
release shall not impair or affect the validity or priority of this
Mortgage, regardless of the effect of the release upon the mortgage,
lien or other interest or the holder of it. This subparagraph does
not imply that Lender consents to the placing of a mortgage, lien or
other encumbrance on the premises.
19. EXPENSES. Mortgagor shall pay to Lender on demand all
expenses, including attorney fees and legal expenses, paid or incurred by
Lender in collecting or attempting to collect the Indebtedness or in
protecting and enforcing the rights of and obligations to Lender under any
provision of this Mortgage, including, without limitation, taking any action
in any Bankruptcy, insolvency or reorganization proceeding concerning
Mortgagor or foreclosing this Mortgage by advertisement or by action. The
expenses shall bear interest, from the date paid or incurred by Lender, at
the Default Rate.
20. APPLICATION OF PROCEEDS. If any rents or profits or any
proceeds of insurance or proceeds of any condemnation or eminent domain award
or proceeds from any sale of the premises at foreclosure are paid to Lender,
Lender shall have the right to apply the rents or profits or proceeds, in
amounts and proportions that Lender shall in its sole discretion determine,
to the full or partial satisfaction of any or all of the indebtedness and
obligations secured by this Mortgage, including any contingent or secondary
obligations, whether or not they shall then be due and payable by the primary
obligor.
21. OTHER. Any notice to Mortgagor or to Lender shall be
considered to be given if and when mailed, with postage prepaid, to the
respective address of Mortgagor or Lender appearing on the first page of this
Mortgage, or if and when delivered personally. The provisions of this
Mortgage shall be binding upon and inure to the benefit of Mortgagor and
Lender and their respective successors and assigns. Any provision of this
Mortgage prohibited or unenforceable by any applicable law shall be
ineffective only to the extent and for the duration of the prohibition or
unenforceability without invalidating the remaining provisions of this
Mortgage.
10
Mortgagor has signed this Mortgage as of the date stated on the
first page of this Mortgage.
SABAL CORP.
------------------------------ /s/ /Xxxxx Xxxxxxxx
--------------------------------------
By: Xxxxx Xxxxxxxx
------------------------------ Its: President
STATE OF TEXAS )
: SS.
COUNTY OF XXXXXX )
This Mortgage was acknowledged before me on October 30, 1998,
by Xxxxx Xxxxxxxx, the President of Sabal Corp., a Nevada corporation, on its
behalf.
/s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Notary Public, Xxxxxx County,
My commission expires: 02/06/02
THIS INSTRUMENT PREPARED BY
AND WHEN RECORDED RETURN TO:
Xxxxxx Xxxxxxxx & Xxxx LLP
Xxxxxx Xxxxxx Xxxxx
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
11
EXHIBIT A
DESCRIPTION OF LAND
Land situated in the County of Lapeer, Township of Marathon, State of
Michigan, described as follows:
Parcel I
The Southwest fractional 1/4 of the Northeast fractional 1/4 of Section 18,
Town 9 North, Range 9 East, Marathon Township, Lapeer County, Michigan, Less
and Except a part of the Southwest 1/4 of the Northeast 1/4 of Section 18,
Town 9 North, Range 9 East, Marathon Township, Lapeer County, Michigan
described as beginning at a point distant North 88 degrees 57 minutes 42
seconds East 1652.36 feet along the East and West 1/4 line and North 01
degrees 18 minutes 01 seconds West 399.86 feet along the East _ line from the
West 1/4 corner of Section 18 and proceeding thence South 87 degrees 48
minutes 12 seconds West 286.89 feet; thence North 02 degrees 11 min. 48
seconds West 330.00 feet; thence North 87 degrees 48 minutes 12 seconds East
292.05 feet; thence along the East _ line South 01 degrees 18 minutes 01
seconds East 330.04 feet to the point of beginning.
Parcel II
Part of the Southwest 1/4 of the Northeast 1/4 of Section 18, Town 9 North,
Range 9 East, Marathon Township, Lapeer County, Michigan described as
beginning at a point distant North 88 degrees 57 minutes 42 seconds East
1652.36 feet along the East and West 1/4 line and North 01 degree 18 minutes
01 second West 399.86 feet along the East _ line from the West 1/4 corner of
Section 18, and proceeding thence South 87 degrees 48 minutes 12 seconds West
286.89 feet; thence North 02 degrees 11 minutes 48 seconds West 330.00 feet;
thence North 87 degrees 48 minutes 12 seconds East 292.05 feet; thence along
the East _ line South 01 degrees 18 minutes 01 seconds East 330.04 feet to
the point of beginning;
TOGETHER with an easement for ingress and egress 100.00 feet wide, being
50.00 feet on either side of the following described centerline; Beginning at
a point on the West line of Section 18 distant North 00 degrees 03 minutes 04
seconds West 78.00 feet from the West 1/4 corner of Section 18 and proceeding
thence North 89 degrees 52 minutes 42 seconds East 336.00 feet; thence North
50 degrees 47 minutes 21 seconds East 810.83 feet; thence North 88 degrees 41
minutes 59 seconds East 385.29 feet to the point of ending on the West line
of the above described Xxxxxx parcel.
Parcels I and II above also having a street address known as 00000 Xxxxxxxx
Xxxx, Xxxxx Xxxx, Xxxxxxxx 00000.
Tax Item No. 44-013-018-010-00
Tax Item No. 44-013-018-010-50
