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EXHIBIT 10.3
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This Document Prepared By |
and After Recording Return To: |
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Xxxxxx X. Xxxxx |
Xxxxxxx and Xxxxxx |
000 Xxxx Xxxxxx Xxxxxx |
Xxxxxxx, Xxxxxxxx 00000 |
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SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S
USE ONLY
MORTGAGE AND SECURITY AGREEMENT WITH
ASSIGNMENT OF RENTS
This Mortgage dated as of January __, 1998 from Xxxxxx Metalcraft Co.,
an Illinois corporation with its principal place of business and mailing address
at 0000 Xxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000-0000 (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
Lenders 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, the Mortgagor and Xxxxxx Metalcraft Co. of North Carolina
("Morton North Carolina; the Mortgagor and Morton North Carolina being herein
referred to collectively as the "Borrowers" and individually as a "Borrower")
have entered into with Xxxxxx (individually and as agent for the Lenders
identified and defined below) that certain Credit Agreement dated as of January
20, 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")
commit, subject to certain terms and conditions, (i) to make a
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revolving credit facility available to the Borrowers in the form of loans and
letters of credit (the "Revolving Credit") in the aggregate principal amount not
to exceed $35,000,000 at any one time outstanding during the period ending on
December 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 $15,000,000 to Mortgagor payable in
installments with a final maturity of all principal and interest not required to
be sooner paid of December 31, 2003 (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 and to be 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 Borrowers promise 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 and to be evidenced by Term
Credit Notes (the "Term Credit Notes") aggregating $15,000,000 in principal
amount and payable to the order of the respective Lenders named thereon, whereby
the Borrowers 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 December 31, 2003; 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 Borrowers have 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
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WHEREAS, it is the intention of the Mortgagor that all such Notes
constitute "Notes" for the purposes hereof and to be secured hereby; and
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 Borrowers in an aggregate face amount not to exceed $5,000,000
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; 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 Borrowers, or either of them, in
connection with any of the Letters of Credit, including the obligation of the
Borrowers, or either of them, to reimburse the Mortgagee for any draws under the
Letters of Credit, (iii) payment of all fees and charges payable by the
Borrowers, or either of them, under the terms of the Credit Agreement, (iv)
payment of all other sums at any time due or owing from or required to be paid
by the Borrowers, or either of them, 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 (v) 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) and (v) 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":
GRANTING CLAUSE I
That certain real estate lying and being in the County of Tazewell in
the State of Illinois, more particularly described in Schedule I attached hereto
and made a part hereof.
GRANTING CLAUSE II
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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.
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
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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").
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
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xxxx, xxxxx, xxxxxxx, xxxxxxx 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
Illinois.
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. 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;
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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 Lenders. 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 Lender in the Mortgaged Premises or upon Mortgagee
or any Lender by reason of or as a 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 Lender 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 Lender
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.
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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 Lender 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 Lenders 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 damage, to Mortgagee (and if
Mortgagee so requests, naming Mortgagee and the Lenders 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
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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
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
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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 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
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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 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
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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 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 Lenders.
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
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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
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
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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 Lender 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 Lender such information and data with respect to the
Mortgaged Premises as Mortgagee or such Lender may reasonably request.
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
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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 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
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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 Lenders 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.
(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, 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
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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 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 Lender shall have the right
to become the purchaser at any sale made under or by virtue of this
instrument; and Mortgagee or any Lender 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 Lender with the amount payable to
Mortgagee or such Lender out of the net proceeds of such sale, and upon
compliance with
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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 Lender 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 Lender 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 Lenders 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.
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
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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 Lender's interest. If Mortgagee or any Lender 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 Lender under this Mortgage (including probate and
bankruptcy proceedings), or if Mortgagee or any Lender 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 Lender 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 Lender, as the case may be, immediately and
without demand, all reasonable costs, charges, expenses and attorney's
fees incurred by Mortgagee or such Lender 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 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 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
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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.
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:
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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 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
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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
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
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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
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 Lenders concerning
the perfection of the security interest granted hereunder or the value
of the Mortgaged Premises.
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35. Restrictions on Lenders' Right to Enforce. No Lender
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
Lenders 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 Lenders.
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 Lenders, 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 (computed on the basis of a year of
365 or 366 days, as the case may be, for the actual number of days
elapsed) determined by adding 2% to the rate per annum from time to
time announced by Xxxxxx as its prime commercial rate (with any change
in the Default Rate resulting from a change in such prime commercial
rate to be and become effective as of and on the date of the relevant
change in such prime commercial rate).
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 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
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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 Lenders may at their
discretion at any time grant credit to any Borrower without notice to
Mortgagor in such amounts and on such terms as such Lenders may elect
(all of such to constitute additional indebtedness hereby secured)
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 any 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 Lenders to extend credit to Mortgagor or to
any Borrower shall have expired.
40. 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.
41. 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.
42. 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
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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.
XXXXXX METALCRAFT CO.
By
Its______________________
__________________
(Type or Print Name)
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STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
I, _______________________________, a Notary Public in and for said
County, in the State aforesaid, do hereby certify that _______________,
___________ of Xxxxxx Metalcraft Co., an Illinois corporation, who is personally
known to me to be the same person whose name is subscribed to the foregoing
instrument as such _____________, appeared before me this day in person and
acknowledged that he signed and delivered the said instrument as his own free
and voluntary act and as the free and voluntary act and deed of said corporation
for the uses and purposes therein set forth.
Given under my hand and notarial seal, this _____ day of January, 1998.
___________________________
_______
Notary Public
_____________________________
_______
(Type or Print Name)
(Notary Seal)
Commission Expires:
________________________________
