EXHIBIT 10.27
RECORD AND RETURN TO:
XXXXXX XXXXXX & XXXXX
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxxx Xxxxxx, Esq.
DEED TO SECURE DEBT, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT
from
GENERAL MANUFACTURED HOUSING, INC.
to
FIRST SOURCE FINANCIAL LLP
_____________________________________________
Dated as of December 21, 1995
_____________________________________________
______________________________________________________________________________
______________________________________________________________________________
DEED TO SECURE DEBT, ASSIGNMENT OF LEASES
AND SECURITY AGREEMENT
THIS DEED TO SECURE DEBT, ASSIGNMENT OF LEASES AND SECURITY AGREEMENT
("MORTGAGE") is made as of the 21st day of December, 1995, by GENERAL
MANUFACTURED HOUSING, INC., a Georgia corporation, with its principal place of
business at 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, XX 00000 ("MORTGAGOR"), to and
for the benefit of FIRST SOURCE FINANCIAL LLP, an Illinois registered limited
liability partnership ("MORTGAGEE"), with an office at c/o First Source
Financial, Inc., 0000 Xxxx Xxxx Xxxx, Xxxx Xxxxx, 0xx Xxxxx, Xxxxxxx Xxxxxxx,
Xxxxxxxx 00000.
RECITALS:
X. Xxxxxxxxx is the owner of the Premises (this and all other capitalized
terms used but not elsewhere defined herein are defined in Section 1. 1 or in
the Credit Agreement) and the Improvements.
B. Pursuant to the terms of the Credit Agreement, Mortgagee has agreed to
make certain loans and other financial accommodations to Mortgagor.
C. The Loans are evidenced by the Note.
D. One of the conditions precedent to the obligation of Mortgagee to
make the Loans is the execution and delivery by Xxxxxxxxx of this Mortgage.
ARTICLE I
DEFINITIONS AND DETERMINATIONS
1.1 DEFINITIONS. Capitalized terms used but not elsewhere defined in this
Mortgage shall have the meanings ascribed thereto in the Credit Agreement. When
used in this Mortgage, the following terms shall have the following meanings:
CONSTRUCTION CONTRACTS: any contracts executed by Mortgagor with any
provider of goods or services in connection with any construction
undertaken on or services performed in connection with, the Premises or the
Improvements.
CREDIT AGREEMENT: that certain Secured Credit Agreement dated as of
December 20, 1995 between Mortgagor and Mortgagee, as the same may be
amended, modified or supplemented after the date hereof.
DEPOSITS: all deposits (i) received by Mortgagor from third parties
(including all xxxxxxx money sales deposits) or (ii) deposited by Mortgagor
with Mortgagee or third parties, including deposits pertaining to utility
services, real estate taxes, special assessments and payment of insurance
premiums.
DOCUMENTS: any mortgage, deed of trust, deed to secure debt,
assignment of leases, assignment of rents, note, indemnification agreement,
security agreement, financing statement, affidavit, assignment of
insurance, loss payee endorsement, mortgage title insurance policy, opinion
letter, waiver letter, estoppel letter, consent letter, insurance
certificate and any other similar documents.
EQUIPMENT: all apparatus, machinery, equipment, furniture, fixtures,
fittings, goods, materials, supplies and chattels of any and every kind and
nature whatsoever now or hereafter used, attached to, installed or located
in or on the Premises and/or the Improvements, including any item used to
supply heat, gas, air conditioning, water, light, electricity, power,
plumbing, refrigeration, sprinkling, ventilation, mobility, communication,
incineration, recreation, laundry service or any other related services.
EVENT OF DEFAULT: each of the Events of Default set forth in the
Credit Agreement.
FUTURE ADVANCES: all advances made by Mortgagee under the Credit
Agreement after the Closing Date to or on behalf of Xxxxxxxxx but not
including any advances made under that certain Revolving Note ("Revolving
Note") and that certain Working Capital Note ("Working Capital Note") of
even date herewith by and between Xxxxxxxxx and Mortgagee.
IMPOSTS: any disbursements made in accordance with the terms hereof
for the payment of taxes, levies or insurance on the Premises.
IMPROVEMENTS: the buildings and improvements now or hereafter located
on the Premises, all tenements, easements, rights-of-way, hereditaments and
appurtenances now and/or at any time hereafter situated on such real estate
and all roads, alleys, streets, passages and other public ways abutting
such real estate, whether before or after vacation thereof and whether in
existence as of the date hereof or created after the date hereof.
LEASES: collectively, all (i) present and future leases, subleases,
agreements, tenancies, subtenancies, licenses, occupancy agreements,
concessions and franchises of Mortgagor's present and future right, title,
and interest in and to the Premises and/or the Improvements, (ii) deposits
of money as advance rent or for security under any of the Leases and (iii)
guaranties of performance under the items described in clauses (i) and (ii)
preceding.
MORTGAGED PROPERTY: collectively, all of Xxxxxxxxx's present and
future estate, right, title, and interest in and to the following:
(a) the Premises;
(b) the Improvements;
(c) the Rents;
(d) the Leases;
(e) all Plans;
(f) all Deposits;
(g) all Permits;
(h) all Equipment;
(i) all Construction Contracts;
(j) all present and future judgments, awards of damages and
settlements made as a result or in lieu of any taking of all or any part of
the Premises, Improvements, Equipment and/or Leases under the power of
eminent domain, or for any damage thereto as a result of any such taking;
(k) all insurance policies in force or effect insuring the Premises,
the Improvements, the Rents, the Leases or the Equipment;
(1) rights arising out of Xxxxxxxxx's interest in the Premises and
the Improvements to (i) the payment of money, (ii) accounts receivable,
(iii) reserves, (iv) deferred payments, (v) refunds and (vi) cost savings;
(m) all development and use rights with respect to the Premises, the
Improvements and/or the Leases;
(n) all chattel paper, instruments, documents, notes, drafts and
letters of credit, other than letters of credit in favor of Mortgagee,
which arise from or relate to (i) construction on the Premises or (ii) the
Premises and Improvements generally;
(o) all causes of action and proceeds thereof for any damage or
injury to the Premises or the Improvements or any other portion of the
Mortgaged Property described above, in addition to those described in
clause (j) above, or breach of warranty in connection with the construction
of all or any portion of the Improvements; and
(p) all proceeds (including condemnation and insurance proceeds) of,
additions to, substitutions for, and changes in each and every one of the
foregoing.
MORTGAGE LIEN: the Lien in favor of Mortgagee represented by this
Mortgage.
MORTGAGOR'S OBLIGATIONS: (i) the payment of any and all Indebtedness,
other than the Indebtedness evidenced by the Revolving Note and the Working
Capital Note, due or to become due, now existing or howsoever arising of
Mortgagor to Mortgagee pursuant to the terms of the Credit Agreement and
the Related Documents, including, without limitation, all (A) advances made
in accordance with the terms hereof to protect and preserve the value of
the Mortgaged Property and the priority of the Mortgage Lien and (B) Future
Advances; (ii) the performance of the covenants of Mortgagor contained in
the Credit Agreement and the Related Documents; (iii) the payment and
performance of any and all Liabilities, other than Liabilities arising
under the Revolving Note and the Working Capital Note pursuant to the terms
of the Credit Agreement and the Related Documents; and (iv) any and all
judgments on the Note, Credit Agreement and Related Documents.
NOTE: that certain Term Note dated December 21, 1995 by and between
Xxxxxxxxx and Mortgagee in the amount of Four Million and No/100ths Dollars
($4,000,000.00) which is due on or before January 1, 2001 which date
includes all extension options contained therein.
PERMITS: all permits, certificates, approvals, licenses, applications
and authorizations used in the operation of the Premises, Improvements
and/or the Leases.
PLANS: all plans and specifications, designs, surveys, drawings, soil
reports and other matters prepared for any construction on the Premises.
PREMISES: the real property legally described in EXHIBIT A.
RENTS: all present and future rents, royalties, issues, avails,
profits and proceeds of or from the Premises, the Improvements, the Leases
and/or the Equipment.
1.2 CERTAIN TERMS. Wherever used in this Mortgage:
1.2.1 AND/OR. The term "and/or" means one or the other or both.
1.2.2 REFERENCES. All references to "Article", "Section",
"subsection", "Subparagraph", "Clause" or "Exhibit", unless otherwise
stated, shall be deemed to refer to an Article, Section, subsection,
subparagraph, clause or Exhibit, as applicable, of this Mortgage.
1.2.3 EXHIBITS. Each reference to an "Exhibit" to this Mortgage is to
an Exhibit which is attached to this Mortgage, each of which Exhibits is
deemed to be a part hereof.
ARTICLE II
CONVEYANCE
2.1 GRANTING CLAUSE. To secure the payment and performance of Xxxxxxxxx's
Obligations, subject to the terms, covenants and provisions contained herein,
the Mortgagor does hereby grant, bargain, sell, alien, remise, release, convey,
assign, transfer, hypothecate, pledge, deliver, set over, warrant and confirm
unto the Mortgagee, for the benefit of the Mortgagee and its successors and
assigns forever, all right, title and interest of the Mortgagor in and to the
Mortgaged Property.
2.2 TITLE. THIS INSTRUMENT is a deed passing title to the Mortgaged
Property to the Mortgagee and is made under the laws of the State of Georgia
relating to deeds to secure debt, and is not a mortgage, and is given to secure
the payment of the Mortgagor's Obligations together with any and all renewals,
modifications, consolidations, replacements and extensions thereof.
2.3 SECURITY AGREEMENT. This Mortgage constitutes a security agreement
with respect to the portion of the Mortgaged Property which consists of personal
property and fixtures under the Uniform Commercial Code of the State in which
the Premises are located.
2.4 ABSOLUTE ASSIGNMENT. This Mortgage is a present and absolute
assignment with respect to the Leases and the Rents.
ARTICLE III
FUTURE ADVANCES; LIMITATION ON AMOUNT SECURED
3.1 FUTURE ADVANCES. This Mortgage is given to secure not only
Xxxxxxxxx's Obligations which exist as of the Closing Date, but also the payment
of any and all Future Advances, whether such Future Advances are obligatory, or
are to be made at the option of Mortgagee.
3.2 LIMITATION ON AMOUNT SECURED. The total amount of Indebtedness
secured by this Mortgage may decrease or increase from time to time, but the
total unpaid balance so secured at one time shall not exceed the sum of (i)
$4,000,000.00, plus (ii) interest thereon, plus (iii) any Imposts, plus (iv) any
amounts paid by Mortgagee pursuant to Section 10.2 hereof, plus (v) all costs
and expenses incurred by Mortgagee in enforcing its rights and remedies under
this Mortgage, plus (vi) interest on the disbursements described in clauses
(iii), (iv) and (v) preceding, which interest shall be calculated at the Default
Rate.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Mortgagor represents and warrants to Mortgagee as follows:
4.1 TITLE. Mortgagor (i) has full legal power and authority to grant
and convey the Premises and (ii) is the holder of fee simple title to the
Premises, free and clear of all Liens except Permitted Liens.
4.2 LOCATION, USE OF PREMISES, IMPROVEMENTS AND EQUIPMENT. The location
and use of the Premises, the Improvements and the Equipment are in compliance
with all applicable laws, rules, ordinances and regulations, including, but not
limited to, building and zoning laws, and all covenants and restrictions of
record, the failure to comply with which would have a Material Adverse Effect.
No notice of violation of such laws, rules and/or ordinances has been issued and
received by Mortgagor which remains uncorrected.
4.3 CREDIT AGREEMENT. All representations and warranties of Mortgagor set
forth in the Credit Agreement are true and correct and are deemed to be remade
herein, including, without limitation, those with respect to (i) Liens, (ii)
Hazardous Materials, Environmental Laws and other environmental matters
affecting the Mortgaged Property and (iii) taxes, assessments, levies,
impositions and charges that have been or hereafter may be imposed or assessed
against all or any portion of the Mortgaged Property.
4.4 COPY OF MORTGAGE. Mortgagor has been furnished with a true, correct
and complete copy of this Mortgage.
4.5 LEGAL COUNSEL. Throughout the transaction contemplated by this
Mortgage, Xxxxxxxxx has retained and has been represented by legal counsel of
its own choosing.
4.6 BUSINESS LOAN. The (i) Loans constitute a business loan transaction
and (ii) proceeds of such Loans are to be utilized solely for the purpose of
carrying on the business of Mortgagor.
4.7 NO AGRICULTURAL PURPOSES. No part of the Mortgaged Property is used
principally or primarily for agricultural or farm purposes.
ARTICLE V
AFFIRMATIVE COVENANTS
Until Xxxxxxxxx's Obligations are paid and performed in full, Xxxxxxxxx
agrees it shall:
5.1 PAYMENT AND PERFORMANCE OF XXXXXXXXX'S OBLIGATIONS. Promptly pay
or perform, or cause to be paid or performed, when due all of Xxxxxxxxx's
Obligations.
5.2 MAINTENANCE OF RIGHTS. Maintain the standing, right, power and lawful
authority to do the following: (i) own good title to the Mortgaged Property,
(ii) carry on the business of and operate the Mortgaged Property, (iii) enter
into, execute and deliver this Mortgage, (iv) convey and assign the interests of
Mortgagor in the Mortgaged Property to Mortgagee, (v) encumber the Mortgaged
Property to Mortgagee as provided herein and (vi)
consummate all of the transactions described in or contemplated by this Mortgage
to be consummated by Mortgagor.
5.3 MAINTENANCE OF PERMITS. Obtain and maintain all Permits where the
failure to obtain and/or maintain any such Permit would have a Material Adverse
Effect.
5.4 PEACEFUL POSSESSION. Remain in peaceful possession of the Mortgaged
Property and take all actions necessary to maintain and preserve the Mortgage
Lien.
5.5 PAYMENT OF LIENS. Promptly pay or cause to be paid, as and when due
and payable or when declared due and payable, any Indebtedness which may become
or be secured by any Lien on any Mortgaged Property and, immediately upon
request by Mortgagee, deliver to Mortgagee evidence satisfactory to Mortgagee of
the payment and discharge thereof.
5.6 REPAIRS. Make all necessary repairs, replacements and renewals
(including the replacement of any items of Equipment) to the Mortgaged Property
so that the value thereof shall not be impaired, including, without limitation,
repairing, restoring or rebuilding any building or improvement now or hereafter
on the Premises which may become damaged or destroyed, and if any portion of the
Mortgaged Property becomes damaged or destroyed, Mortgagor permit Mortgagee, and
its agents, upon prior notice and demand, access to the Mortgaged Property for
the purpose of inspection thereof.
5.7 BUILDINGS AND IMPROVEMENTS. Pay for and complete, within a reasonable
time, any building or improvement at any time in the process of being erected
upon the Premises.
5.8 EXECUTION OF DOCUMENTS. Immediately upon request by Mortgagee, at
Xxxxxxxxx's sole expense, make, execute and deliver and/or cause to be made,
executed and delivered to Mortgagee, in form and substance acceptable to
Mortgagee, all Documents that Mortgagee deems necessary to evidence, document
and/or conclude the transactions described in and/or contemplated by this
Mortgage, or reasonably required to perfect or continue perfected the Mortgage
Lien.
5.9 COMPLIANCE WITH LAWS. Comply with all applicable laws, rules,
ordinances and regulations, including, without limitation, building and zoning
laws, and all covenants and restrictions of record, the failure to comply with
which would have a Material Adverse Effect.
5.10 CREDIT AGREEMENT. Comply with all covenants, agreements and
indemnifications contained in the Credit Agreement, including those with respect
to (i) taxes, assessments, levies, impositions and charges as they relate to
Mortgagor or the Mortgaged Property, (ii) delivery of financial statements,
reports and other information, (iii) insurance policies to be maintained for the
Mortgaged Property and the settlement, receipt and application of insurance
proceeds arising under such insurance policies and (iv) Hazardous Materials,
Environmental Laws and other environmental matters as they relate to Mortgagor
or the Mortgaged Property.
5.11 STAMP TAX; EFFECT OF CHANGE IN LAWS REGARDING TAXATION.
5.11.1 PAYMENT OF STAMP TAX. If, by the laws of the United States of
America or of any state or subdivision thereof having jurisdiction over
Mortgagor, any tax is due or becomes due in respect of the issuance of the
Note or the recording of this Mortgage or the
Credit Agreement and the Related Documents and unless such laws prohibit
Mortgagor from paying such tax, (i) pay such tax in the manner required by
any such law and (ii) reimburse Mortgagee for any sums which Mortgagee may
expend by reason of the imposition of any tax on the issuance of the Note.
5.11.2 PAYMENT OF TAXES IMPOSED ON MORTGAGEE. In the event of the
enactment, after this date, of any law, statute, rule or regulation of the
United States of America or of the State in which the Premises are located
or any other state or subdivision thereof imposing upon Mortgagee the
payment of the whole or any part of the taxes, assessments or Liens herein
required to be paid by Xxxxxxxxx, or changing in any way the laws relating
to the taxation of mortgages or debts secured by mortgages or Mortgagee's
interest in the Premises or any other portion of the Mortgaged Property, or
the manner of collection of taxes, so as to affect this Mortgage or
Mortgagor's Obligations or the holder thereof, then, and in any such event,
upon demand by Mortgagee, pay such taxes or assessments or reimburse
Mortgagee therefor; provided, however, that if the opinion of counsel for
Mortgagee, (i) it might be unlawful to require Mortgagor to make such
payment, or (ii) the making of such payment might result in the imposition
of interest beyond the maximum amount permitted by law, then and in any
such event, Mortgagee may elect, by notice in writing given to Xxxxxxxxx,
to declare all of Xxxxxxxxx's Obligations to be and become due and payable
thirty (30) days from the date of giving of such notice.
ARTICLE VI
NEGATIVE COVENANTS
Until Xxxxxxxxx's Obligations are paid and performed in full, Xxxxxxxxx
agrees it will not:
6.1 ADDITIONAL LIMITATIONS. Execute, file or record any notice limiting
the maximum principal amount that may be secured by this Mortgage.
6.2 SALE OR TRANSFER. Sell, transfer, exchange, convey, remove or
otherwise dispose of all or any portion of the Mortgaged Property or legal or
equitable interest therein, except to the extent permitted by the Credit
Agreement.
6.3 LIENS. Permit any Liens to exist on the Mortgaged Property except (i)
Permitted Liens, and (ii) Leases, if any.
6.4 USE OF MORTGAGED PROPERTY. Substantially or materially change the use
or character of any portion of the Mortgaged Property, permit any excavation,
construction, site work or other lienable work to be performed on any portion of
the Mortgaged Property, initiate or acquiesce in any zoning variation or
reclassification of any portion of the Mortgaged Property or commit or suffer
any waste to exist on any portion of the Mortgaged Property.
6.5 INSURANCE. Purchase any separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained under the
Credit Agreement and the Related Documents unless (i) Mortgagee receives prompt
notice thereof and is included thereon under a standard non-contributory
mortgagee clause acceptable to Mortgagee, (ii) such separate insurance otherwise
complies with all of the requirements of the
Credit Agreement and the Related Documents and (iii) Mortgagor delivers to
Mortgagee promptly the original policy or policies of such insurance.
ARTICLE VIII
INSURANCE
7.1 ADJUSTMENT OF LOSSES; COLLECTION OF PROCEEDS. In case of loss or
damage by fire or other insured casualty to all or any portion of the Mortgaged
Property, Mortgagee is authorized and empowered to (i) make or file proofs of
loss, and settle and adjust any claim under insurance policies which insure
against such risks, or (ii) direct Mortgagor to agree with each insurance
company on the amount to be paid as a result of such loss. If the insurance
proceeds paid for such loss are equal to or less than $10,000, Mortgagor may
collect such proceeds so long as (x) Mortgagor uses such proceeds to repair,
restore or rebuild the Mortgaged Property, in such manner and under such
conditions as Mortgagee may require and (y) no Event of Default or Unmatured
Event of Default exists. If the insurance proceeds paid for such loss are
greater than $10,000, or if an Unmatured Event of Default or Event of Default
then exists, then Mortgagee is authorized to collect such proceeds.
7.2 APPLICATION OF PROCEEDS. Mortgagee may elect (i) to apply insurance
proceeds received by Mortgagee to the payment of Mortgagor's Obligations,
whether or not then due, or (ii) after the payment of all expenses incurred by
Mortgagee in connection with the collection of such insurance proceeds,
including, without limitation, attorneys' fees, to make such insurance proceeds
available to Mortgagor for repair, restoration or rebuilding of the Mortgaged
Property, in such manner and under such conditions as Mortgagee may require. In
the event that Mortgagee has permitted the insurance proceeds to be used to
restore the Mortgaged Property, Mortgagor shall (x) pay the amount of any
deficiency in such insurance proceeds in order to restore the Mortgaged Property
fully to its condition immediately prior to the loss or damage to which such
insurance proceeds relate and (y) deliver to Mortgagee any surplus which may
remain out of such proceeds after payment of the cost of restoration to be
applied to the payment of Mortgagor's Obligations.
7.3 FAILURE TO COLLECT PROCEEDS. Mortgagee shall not be held responsible
for (i) any failure to collect any insurance proceeds due under the terms of any
policy, regardless of the cause of such failure, (ii) the amount of any such
proceeds ultimately paid, regardless of any negotiation by Mortgagee of such
amount, or (iii) any use by Mortgagor of such proceeds as Mortgagee may pay over
to Mortgagor.
ARTICLE VIII
CONDEMNATION
8.1 NOTICE; ASSIGNMENT OF PROCEEDS. Mortgagor shall notify Mortgagee
immediately of the institution or threat of institution of any proceeding
pertaining to the condemnation of any portion of the Mortgaged Property.
Mortgagee is authorized to settle all claims for damages to any portion of the
Mortgaged Property which relate to, and collect any proceeds of any award which
may be the result of, any eminent domain or condemnation proceeding.
8.2 APPLICATION OF PROCEEDS. Mortgagee may elect (i) to apply the
proceeds of the award or claim received by Mortgagee described in Section 8.1 to
the payment of Mortgagor's Obligations in accordance with the provisions of the
Credit Agreement, whether due or not, or (ii) after the payment of all expenses
incurred by Mortgagee in connection with the collection of such proceeds,
including, without limitation, attorneys' fees, to make such proceeds available
to Mortgagor for replacement of the condemned portion of the Mortgaged Property,
in such manner and under such conditions as Mortgagee may require. In the event
that Mortgagee has permitted the proceeds of the award or claim to be used to
replace the condemned portion of the Mortgaged Property, Mortgagor shall (x) pay
the amount of any deficiency in such proceeds in order to complete such
replacement and (y) deliver to Mortgagee any surplus which may remain out of
such proceeds after payment of the cost of replacement to be applied to the
payment of Mortgagor's Obligations.
8.3 FAILURE TO COLLECT PROCEEDS. Mortgagee shall not be held responsible
for (i) any failure to collect any condemnation proceeds, regardless of the
cause of such failure, (ii) the amount of any such proceeds ultimately paid,
regardless of any negotiation by Mortgagee of such amount, or (iii) any use by
Mortgagor of such proceeds as Mortgagee may pay over to Mortgagor.
ARTICLE IX
LEASES AND RENTS
9.1 LICENSE TO COLLECT. Subject to Mortgagee's rights under Section 11,
Mortgagee hereby confers upon Mortgagor a non-exclusive license to collect and
retain the Rents as they become due and payable.
9.2 RENT ROLL, COPIES OF LEASES. Upon Mortgagee's request, Xxxxxxxxx
shall deliver to Mortgagee (i) a rent roll pertaining to all Leases, (ii) copies
of all Leases and (iii) such other matters and information relating to any Lease
as Mortgagee may request.
ARTICLE X
CERTAIN RIGHTS OF MORTGAGEE
10.1 DOCUMENTS. In case Mortgagor fails to execute or obtain any Documents
required by Mortgagee for the perfection or continuation of the Mortgage Lien,
Mortgagor hereby appoints Mortgagee as its true and lawful attorney-in-fact to
execute or obtain any such Documents on its behalf.
10.2 MAINTENANCE OF MORTGAGED PROPERTY. If Mortgagor, within thirty (30)
days after receipt of written demand from Mortgagee (except in cases of
emergency, when no demand shall be required), shall neglect or refuse to (i)
keep the Mortgaged Property in good operating condition and repair, (ii) replace
or maintain the same as herein agreed, (iii) pay the premiums for the insurance
which is required to be maintained hereunder, (iv) pay and discharge all Liens
as herein agreed or (v) otherwise perform Mortgagor's Obligations within the
time periods specified therefor (including any applicable cure periods),
Mortgagee, at its option and sole election. may cause such repairs or
replacements to be made, obtain such insurance, pay such Liens or perform such
Mortgagor's Obligations. Any amounts paid by Mortgagee in taking such action,
together with interest thereon at the Default Rate until repaid by Mortgagor to
Mortgagee, shall be due and payable by Mortgagor to Mortgagee upon demand, and,
until paid,
shall constitute a part of Xxxxxxxxx's Obligations secured by this Mortgage.
Mortgagee shall not be liable to Mortgagor for failure or refusal to exercise
any such right. In making, any payments pursuant to the exercise of any such
right, Mortgagee may rely upon any bills delivered to it by Mortgagor or any
such payee.
ARTICLE XI
DEFAULT AND REMEDIES
The occurrence of an Event of Default under the Credit Agreement shall
constitute an Event of Default under this Mortgage. Upon the occurrence of an
Event of Default, Mortgagee may declare all of Xxxxxxxxx's Obligations
immediately due and payable, whereupon Xxxxxxxxx's Obligations immediately shall
mature and become due and payable.
If any Event of Default occurs, Mortgagee, in its sole discretion and at
its sole election, without notice of such election, and without further demand,
may exercise any one or more of the following rights and remedies:
11.1 OTHER REMEDIES. To the extent permitted by applicable law, Mortgagee
may exercise any one or more of the following remedies, whether or not
Mortgagor's Obligations have been accelerated:
11.1.1 TAKING OF POSSESSION. Mortgagee, by itself or by such
officers or agents as it may appoint, may enter and take exclusive
possession of all or any part of the Mortgaged Property, including all
books, papers and accounts of Mortgagor relating to the business of
Mortgagor conducted at such Mortgaged Property, and may expel, remove and
exclude Mortgagor, its agents and employees and any persons, goods and
chattels occupying the Mortgaged Property. If Xxxxxxxxx for any reason
fails to surrender or deliver the Mortgaged Property or any part thereof
after such demand by Mortgagee, Mortgagee may obtain a judgment or decree
conferring on Mortgagee the right to immediate possession or requiring the
delivery to Mortgagee of the Mortgaged Property, and Xxxxxxxxx specifically
consents to the entry of such judgment or decree. Upon every such taking of
possession, Mortgagee may (i) hold, store, use, operate, manage and control
the Mortgaged Property and conduct the business of Mortgagor thereon, (ii)
perform all necessary and proper maintenance and make all necessary and
proper repairs, renewals, replacements, additions, betterment and
improvements thereto and thereon and purchase or otherwise acquire
additional fixtures, personalty and other Property, (iii) keep the
Mortgaged Property insured, (iv) manage and operate the Mortgaged Property
and exercise all of the rights and powers of Mortgagor to the same extent
as Mortgagor could in its own name, (v) enter into any agreements with
respect to the exercise by others of any of the powers granted to Mortgagee
herein, in such manner as Mortgagee shall elect, (vi) collect and receive
all of the Rents, including those past due as well as those accruing after
the occurrence of any such Event of Default and (vii) after deducting (A)
all expenses of taking, holding, holding, managing and operating the
Mortgaged Property (including compensation for the services of all Persons
employed for such purposes), (B) the cost of all such maintenance, repairs,
renewals, replacements, additions, betterments, improvements and purchases
and acquisitions, (C) the cost of such insurance, (D) such taxes,
assessments and other similar charges as Mortgagee may determine to pay,
(E) other proper charges upon the Mortgaged Property or any part thereof
and (F) the compensation, expenses and disbursements of the
attorneys and agents of Mortgagee, apply the remainder of the monies
and proceeds so received by Mortgagee as described in Section 11.8
hereof.
11.1.2 DEPOSITS FOR TAXES AND INSURANCE. Mortgagee may require
Mortgagor to deposit with Mortgagee, commencing 10 days following such
request and on the first day of each month thereafter, a sum equal to the
amount of all insurance premiums next due in respect of the insurance
policies required to be maintained under the Credit Agreement and the
Related Documents and all general and special real estate taxes and
assessments next due upon or for the Mortgaged Property (the amount of such
insurance premiums, taxes and assessments next due to be based upon
Mortgagee's reasonable estimate, but shall include all taxes or assessments
not levied, charged, assessed or imposed separately upon the Mortgaged
Property), reduced by the amount, if any, then on deposit with Mortgagee
for such purpose, divided by the number of months to elapse before one
month prior to the date when such insurance premiums, taxes and assessments
will become due and payable. If such Deposits are insufficient to pay any
such insurance premiums, taxes or assessments when the same become due and
payable, Mortgagor, within 10 days after receipt of demand therefor from
Mortgagee, shall deposit such additional funds as may be necessary to pay
such insurance premiums in full. If such Deposits exceed the amount
required to pay such insurance premiums, taxes or assessments for any year,
the excess shall be credited against the next succeeding deposit or
deposits to be made by Mortgagor. Such Deposits need not be kept separate
and apart from any other funds of Mortgagee, shall be held without any
allowance of interest to Mortgagor and shall be used for the payment of
insurance premiums, taxes and assessments on the Mortgaged Property next
due and payable when they become due; provided that Mortgagee shall not be
liable for any failure to apply such Deposits to the payment of such
insurance premiums, taxes and assessments unless Mortgagee shall have
received from Mortgagor a request for payment accompanied by the bills for
such insurance premiums, taxes and assessments not less than thirty days
prior to the date due.
11.1.3 LEASES AND RENTS. Mortgagee may, with or without taking
possession of the Mortgaged Property, as attorney and agent-in-fact for
Xxxxxxxxx constituted and appointed by Xxxxxxxxx with full power of
substitution (which power is coupled with an interest and is irrevocable),
in the name of Xxxxxxxxx, Mortgagee, or both:
(a) demand, collect, settle, adjust, compromise, and enforce, by
legal proceedings or otherwise, payment of the Rents, endorse the name
of Mortgagor upon any payments or proceeds of the Rents and deposit
the same for the account of Mortgagee and do all other acts and things
necessary, in Mortgagee's sole discretion, to obtain control and use
of the Rents;
(b) terminate the license granted to Mortgagor hereunder to
collect the Rents and thereafter Mortgagee shall have all right,
title and interest in and to the Leases and the Rents by virtue
of the present assignment thereof granted to Mortgagee hereunder;
(c) require Mortgagor to deliver to Mortgagee the originals of
the Leases, with appropriate endorsement and/or other specific
evidence of assignment thereto to Mortgagee, which endorsement and/or
assignment shall be in form and substance acceptable to Mortgagee;
(d) notify any of the obligors under the Leases that the
Leases have been assigned to Mortgagee and direct such obligers
thereafter to make all payments due from them under the Leases
directly to Mortgagee; and
(e) require Mortgagor to direct all obligers of the Leases
to make all payments due them under the Leases directly to Mortgagee.
Notwithstanding anything in this subsection 11.2.3 to the contrary, under
no circumstances shall Mortgagee have any duty to produce Rents from the
Mortgaged Property. Regardless of whether or not Mortgagee, in person or by
agent, takes actual possession of the Premises and Improvements, Mortgagee
is not and shall not be deemed to be (i) a "mortgagee in possession" for
any purpose; (ii) responsible for performing any of the obligations of the
lessor under any Lease; (iii) responsible for any waste committed by
lessees or any other parties, any dangerous or defective condition of the
Mortgaged Property, or any negligence in the management, upkeep, repair or
control of the Mortgaged Property; or (iv) liable in any manner for the
Mortgaged Property or the use, occupancy, enjoyment or operation of all or
any part thereof.
11.1.4 APPOINTMENT OF RECEIVER. Upon application to a court of
competent jurisdiction, Mortgagee may appoint a receiver to take
possession of and to operate the Mortgaged Property and to collect and
apply the Rents, without notice and without regard to the occupancy or
value of any security for Xxxxxxxxx's Obligations or the solvency of
Mortgagor. The receiver shall have all rights and powers necessary or
usual for the protection, possession, control, management and
operation of the Mortgaged Property during the period of receivership,
to the fullest extent permitted by law.
11.1.5 OTHER REMEDIES. Mortgagee may exercise any other rights
and remedies then available to Mortgagee under this Mortgage, the
Note, the Credit Agreement and the other Related Documents and any
applicable laws.
11.2 REMEDIES UPON ACCELERATION. If Xxxxxxxxx's Obligations have
been accelerated pursuant to Section 11 or the Credit Agreement, in
addition to Mortgagee's rights under Section 11.1, Mortgagee may exercise
any one or more of the following remedies:
11.2.1 POWER OF ENFORCEMENT.
If Xxxxxxxxx's Obligations have been accelerated, Mortgagee,
at its option, may do any one or more of the following:
(a) Sell the Mortgaged Property or any part of the Mortgaged
Property at one or more public sale or sales at the usual place for
conducting sales in the county in which the Premises or any part of
the Premises is situated, to the highest bidder for cash, in order to
pay the Mortgagor's Obligations, and all expenses of sale and of all
proceedings in connection therewith, including reasonable attorneys'
fees, after advertising the time, place and terms of sale once a week
for four (4) weeks immediately preceding such sale (but without regard
to the number of days) in a newspaper in which sheriff's
sales are advertised in said county, all other notices being hereby
waived by the Mortgagor. At any such public sale, the Mortgagee may
execute and deliver to the purchaser a conveyance of the Mortgaged
Property or any part of the Mortgaged Property in fee simple, without
warranty on behalf of Mortgagor; and to this end Mortgagor hereby
constitutes and appoints the Mortgagee the agent and attorney-in-fact
of Mortgagor to make such sale and conveyance, and thereby to divest
Mortgagor of all right, title and equity that Mortgagor may have in
and to the Mortgaged Property and to vest the same in the purchaser or
purchasers at such sale or sales, and all the acts and doings of said
agent and attorney-in-fact are hereby ratified and confirmed, and any
recitals in said conveyance or conveyances as to facts essential to a
valid sale shall be binding upon Mortgagor absent manifest error. The
aforesaid power of sale and agency hereby granted are coupled with an
interest and are irrevocable by death or otherwise, and shall not be
exhausted by one exercise thereof but may be exercised until full
payment of all of the Mortgagor's Obligations. In the event of any
sale under this Mortgage by virtue of the exercise of the powers
herein granted, or pursuant to any order in any judicial proceeding or
otherwise, the Mortgaged Property may be sold as an entirety or in
separate parcels and in such manner or order as the Mortgagee in its
discretion may elect, and if the Mortgagee so elects, the Mortgagee
may sell the personal property covered by this Mortgage at one or more
separate sales in any manner permitted by the U.C.C. (hereinafter
defined), and one or more exercises of the powers herein granted shall
not extinguish nor exhaust such powers, until the entire Mortgaged
Property is sold or the Indebtedness is paid in full. If the
Mortgagor's Obligations are now or hereafter further secured by any
chattel mortgages, pledges, contracts of guaranty, assignments of
lease or other security instruments, the Mortgagee may at its option
exhaust the remedies granted under any of said security either
concurrently or independently, and in such order as the Mortgagee may
determine in its discretion. Upon any foreclosure sale, the Mortgagee
may bid for and purchase the Mortgaged Property and shall be entitled
to apply all or any part of the Mortgagor's Obligations as a credit to
the purchase price. In the event of any such foreclosure sale by the
Mortgagee, Mortgagor and any party claiming through Mortgagor shall be
deemed a tenant holding over and shall forthwith deliver possession to
the purchaser or purchasers at such sale or be summarily dispossessed
according to provisions of law applicable to tenants holding over.
(b) Proceed by a suit or suits in law or in equity or by another
appropriate proceeding or remedy (i) to enforce payment of the Note or
the performance of any term, covenant, condition or agreement of this
Mortgage or any of the other Related Documents or any other right or
(ii) to pursue any other remedy available to the Mortgagee.
11.2.2 INDEBTEDNESS DUE ON FORECLOSURE.
Upon commencement of suit on this Mortgage or the Note, or upon
commencement of foreclosure of this Mortgage by suit or by
commencement of advertising of the intended exercise of the sale under
power provided herein, the unpaid principal of the Note, if not
previously declared due, and the interest accrued thereon, and any
other Indebtedness shall at once become and be
immediately due and payable.
11.2.3 RIGHTS UNDER UNIFORM COMMERCIAL CODE. Mortgagee may
exercise all of the rights and remedies of a secured party under the
Uniform Commercial Code of the State in which the Premises are located
(the "U.C.C.") with respect to the Collateral. Pursuant to Section 9-
501(4) of such Uniform Commercial Code, Mortgagee shall have an option
to proceed with respect to both the real property portion of the
Mortgaged Property and the Collateral, in accordance with its rights,
powers and remedies with respect to the real property, in which event
the remedy and enforcement provisions of this Mortgage in lieu of the
remedy and enforcement provisions of such Uniform Commercial Code
shall apply. Such Section 9-501(4) also permits Mortgagee to proceed
separately against the Collateral in accordance with the remedy and
enforcement provisions of such Uniform Commercial Code. If Mortgagee
shall elect to proceed against the Collateral separately from any
proceeding with respect to the real property, Xxxxxxxxx agrees that 10
days notice of the sale of the Collateral shall be reasonable notice.
11.2.4 STATE STATUTES. Mortgagee may exercise all rights and
remedies under the statutes in the State where the Premises are
located, subject to the following:
(a) if any provision in this Mortgage is inconsistent with
any applicable statute in the State where the Premises are
located, such statute shall take precedence over the provisions
of this Mortgage, but shall not invalidate or render
unenforceable any other provision of this Mortgage that can be
construed in a manner consistent with such statute; and
(b) if any provision of this Mortgage shall grant to
Mortgagee any rights or remedies upon default of Mortgagor which
are more limited than the rights that otherwise would be vested
in Mortgagee under such statute in the absence of such provision,
Mortgagee shall be vested with the rights granted in such statute
to the full extent permitted by law.
Without limiting the generality of the foregoing, all expenses
incurred by Mortgagee to the extent reimbursable under such statute,
whether incurred before or after any decrees or judgment of
foreclosure, and whether or not provided for elsewhere in this
Mortgage, shall be added to Xxxxxxxxx's Obligations or to the judgment
of foreclosure, as described more fully in Section 11.3.
11.3 ADDITIONS TO XXXXXXXXX'S OBLIGATIONS. Upon the occurrence of an
Event of Default, there will be added to and included as part of Xxxxxxxxx's
Obligations (and allowed in any sale or decree for sale of the Mortgaged
Property or in any judgment rendered upon this Mortgage, the Note, the Credit
Agreement or the other Related Documents) all of the costs and expenses incurred
by Mortgagee in exercising its rights and remedies under this Mortgage. All of
such costs and expenses, including attorneys' fees, shall (i) be secured by this
Mortgage, (ii) be payable upon demand and (iii) bear interest at the Default
Rate from the date incurred by Mortgagee until paid.
11.4 PROCEEDINGS DISCONTINUED. To the full extent permitted by applicable
law, in case Mortgagee shall have proceeded to enforce any right
under this Mortgage by foreclosure, entry or otherwise and such proceedings
shall have been discontinued or abandoned for any reason, or shall have been
determined adversely to Mortgagee, then, except as otherwise determined in such
proceeding, Mortgagor and Mortgagee shall be restored to their former positions
and rights hereunder with respect to the Mortgaged Property, and all rights,
remedies, and powers of Mortgagee shall continue as though no such proceedings
had been commenced.
11.5 DEFICIENCY.
11.5.1 SALE AND FORECLOSURE. If the Mortgaged Property (or any
part thereof which remains subject to this Mortgage) is sold pursuant to
foreclosure proceedings or pursuant to a power of sale, and if the net
proceeds of any such sale are not sufficient to pay all of Mortgagor's
Obligations then outstanding and any other amounts provided for in any
decree or judgment of foreclosure or provided for by applicable law (the
amount of such deficiency and the deficiency described in subsection 11.5.2
hereinafter collectively referred to as the "Balance Owed"), then the
Indebtedness evidenced by the Note shall not be satisfied to the extent of
the Balance Owed, but such Indebtedness shall continue in existence and
shall continue to be evidenced by the Note and shall continue to be secured
by the Credit Agreement and the Related Documents which were in existence
prior to any such decree or judgment of foreclosure, except this Mortgage.
Subject to the requirements of applicable law, if Mortgagee shall acquire
the Mortgaged Property as a result of any such sale described above
(whether by bidding all or any of Mortgagor's Obligations or otherwise),
the proceeds of such sale shall not be deemed to include (and Mortgagor
shall not be entitled to any benefit or credit on account of) proceeds of
any subsequent sale of the Mortgaged Property by Mortgagee.
11.5.2 FORECLOSURE OF OTHER CREDIT AGREEMENT AND THE RELATED
DOCUMENTS. Notwithstanding the provisions of subsection 11.5.1, Xxxxxxxxx
further agrees that if any other portion of the Collateral is foreclosed
judicially and such Collateral is sold pursuant to foreclosure proceedings
or pursuant to subsection 11.2.1, and if the proceeds of such sale (after
application of such proceeds as provided for herein and after deducting all
accrued and general and special taxes and assessments) are not sufficient
to pay Xxxxxxxxx's Obligations and any other amounts provided for in the
decree or judgment of foreclosure or provided for by applicable law, then
Mortgagor's Obligations then outstanding shall not be satisfied to the
extent of such Balance Owed, but such Indebtedness shall continue in
existence and continue to be evidenced by the Note and shall continue to be
secured by this Mortgage, the Credit Agreement and the other Related
Documents, which were in existence immediately prior to any such decree or
judgment of foreclosure, except each such Related Document which pertains
to the portion of the Collateral which was the subject of any such sale.
11.6 APPLICATION OF PROCEEDS. The proceeds of any foreclosure sale of
the Mortgaged Property or any other proceeds received hereunder shall be applied
in accordance with the provisions of Section 7.3 of the Credit Agreement.
ARTICLE XII
RECONVEYANCE
Mortgagee shall release the Mortgaged Property, or such portion thereof as
previously shall not have been sold pursuant to the terms of this Mortgage, by
proper instrument upon payment and discharge of all of Mortgagor's Obligations.
ARTICLE XIII
MISCELLANEOUS
13.1 NOTICES. All notices and communications under this Mortgage shall be
in writing and, if (a) forwarded by mail shall be deemed to have been given
three days after the date sent if sent by registered or certified mail, postage
prepaid, and:
(i) if to Mortgagor, addressed to Mortgagor at its address first set
forth above; or
(ii) if to Mortgagee, addressed to Mortgagee at its address first set
forth above; or
in the case of any party, at such other address as such party may, by written
notice received by the other parties to this Mortgage, have designated a-s its
address for notices; and (b) notices given by telegram, telex or facsimile
transmission shall be deemed to have been given when sent if addressed to the
party to whom sent, at its address as aforesaid, or to any other address, as to
any such party, as such party shall designate in a written notice to the other
party hereto. All notices sent pursuant to the terms of this Section 13.1 shall
be deemed received (i) if personally delivered, then on the date of delivery,
(ii) if sent by overnight, express carrier, on the next Business Day immediately
following the day sent, or (iii) if sent by registered or certified mail, on the
earlier of the fifth Business Day following the day sent or when actually
received.
13.2 COVENANTS RUN WITH LAND. All the covenants contained in this Mortgage
shall run with the land. Time is of the essence for the performance by Mortgagor
of its obligations under this Mortgage.
13.3 GOVERNING LAW. THIS MORTGAGE SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED AS TO VALIDITY, INTERPRETATION, CONSTRUCTION, EFFECT AND IN ALL
OTHER RESPECTS BY THE LAWS AND DECISIONS OF THE STATE OF ILLINOIS, EXCEPT THAT
THE LAWS OF THE STATE WHERE THE PREMISES ARE LOCATED SHALL APPLY TO THE
CREATION, PRIORITY, PERFECTION AND MAINTENANCE OF THE MORTGAGE LIEN AND TO THE
ENFORCEMENT OF THE REMEDIES OF MORTGAGEE HEREUNDER AND ANY OF ITS SUCCESSORS AND
ASSIGNS.
13.4 JURISDICTION AND VENUE. SUBJECT TO THE PROVISIONS OF ANY APPLICABLE
STATUTE IN THE STATE WHERE THE PREMISES ARE LOCATED, XXXXXXXXX AGREES THAT
MORTGAGEE MAY ENFORCE ANY CLAIM ARISING OUT OF THIS MORTGAGE IN ANY STATE OR
FEDERAL COURT HAVING SUBJECT MATTER JURISDICTION AND LOCATED IN CHICAGO,
ILLINOIS. FOR THE PURPOSE OF ANY ACTION OR PROCEEDING INSTITUTED WITH RESPECT TO
ANY SUCH CLAIM, XXXXXXXXX XXXXXX IRREVOCABLY DESIGNATES THE XXXXXXXX-XXXX
CORPORATION SYSTEM, INC., WITH OFFICES ON THE DATE HEREOF AT 00 XXXXX XXXXXXX
XXXXXX, XXXXXXX, XXXXXXXX 00000, TO RECEIVE FOR AND ON BEHALF OF MORTGAGOR
SERVICE OF PROCESS IN ILLINOIS. XXXXXXXXX FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF SUCH COURTS BY MAILING A COPY THEREOF, POSTAGE
PREPAID, TO MORTGAGOR AND AGREES THAT SUCH SERVICE, TO THE FULLEST EXTENT
PERMITTED BY LAW, (i) SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON IT IN ANY SUCH SUIT, ACTION
OR PROCEEDING AND (ii) SHALL BE TAKEN AND HELD TO BE PERSONAL SERVICE UPON AND
PERSONAL DELIVERY TO IT. NOTHING HEREIN CONTAINED SHALL AFFECT THE RIGHT OF
AGENT OR ANY LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
PRECLUDE AGENT OR ANY LENDER FROM BRINGING AN ACTION OR PROCEEDING IN RESPECT OF
THIS MORTGAGE IN ANY OTHER COUNTRY, STATE OR PLACE HAVING JURISDICTION OVER SUCH
ACTION. MORTGAGOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT LOCATED
IN CHICAGO, ILLINOIS AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
13.5 WAIVER OF JURY TRIAL. TO THE FULL EXTENT PERMITTED BY APPLICABLE
LAW, EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR
ANY RELATED DOCUMENT TO WHICH IT IS A PARTY, OR UNDER ANY AMENDMENT, INSTRUMENT
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION
WITH THIS AGREEMENT OR ANY RELATED DOCUMENT, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
13.6 SUCCESSORS AND ASSIGNS. This Mortgage will be binding upon and inure
to the benefit of the successors and assigns of each of Mortgagor and Mortgagee.
13.7 SEVERABILITY. Any provision of this Mortgage that is unenforceable
in any state in which this Mortgage may be filed or recorded or is invalid or
contrary to the law of such state, shall be of no effect, and in such case all
the remaining terms and provisions of this Mortgage shall continue to be fully
effective in accordance with the terms and provisions of this Mortgage, all as
though no such invalid portion ever had been included herein.
13.8 REMEDIES CUMULATIVE. All rights and remedies of Mortgagee under this
Mortgage, the other Credit Agreement and any of the other Related Documents are
cumulative and concurrent and may be exercised singularly, successively or
concurrently and Mortgagee shall have all rights, remedies and recourse
available at law or equity.
13.9 SUBROGATION. To the extent that any of Xxxxxxxxx's Obligations
represent funds utilized to satisfy any outstanding Indebtedness secured by
Liens against all or any part of the Mortgaged Property, to the extent permitted
thereby and by applicable law, Mortgagee shall be subrogated to any and all
Liens owned or claimed by the holder of any such outstanding Indebtedness so
satisfied, regardless of whether such Liens are assigned to Mortgagee or
released by the holder(s) thereof.
13.10 INDEMNIFICATION. Mortgagor will save and hold Mortgagee harmless of
and from any and all damage, loss, cost and expense, including, but not limited
to, attorneys' fees, costs and expenses, incurred by reason of or arising from
or on account of or in connection with any suit or proceeding threatened, filed
and/or pending brought by anyone other than Mortgagee, in or to which Mortgagee
is or may become a party by reason of or arising from Mortgagor's Obligations,
this Mortgage, the Credit Agreement and any of the other Related Documents.
13.11 CONFLICTS. In the event of any conflict or inconsistency between the
terms of this Mortgage and the terms of the Credit Agreement,
the terms of the Credit Agreement shall prevail.
13.12 NO PARTNER, JOINT VENTURER. Mortgagor and Mortgagee agree that in no
event shall Mortgagee be deemed to be a partner or a joint venturer with
Mortgagor. Without limiting the foregoing, Mortgagee shall not be deemed to be
such a partner or joint venturer on account of becoming a mortgagee in
possession or exercising any rights pursuant to this Mortgage or pursuant to any
other instrument or document evidencing or securing any of Mortgagor's
Obligations.
13.13 WAIVERS. Mortgagor, on behalf of itself, its successors and assigns,
to the extent permitted by law, hereby (i) waives any and all rights of
appraisement, valuation, stay, extension and (to the extent permitted by law)
redemption from sale under any order or decree of foreclosure of this Mortgage,
(ii) waives any equitable, statutory or other right available to it, pertaining
to marshalling of assets hereunder, so as to require the separate sales of
interests in the Mortgaged Property before proceeding against any other interest
in the Mortgaged Property, (iii) consents to and authorizes, at the option of
Mortgagee, the sale, either separately or together, of any and all interests in
the Mortgaged Property, (iv) agrees that in no event shall Mortgagee be required
to allocate any proceeds received by Mortgagee from foreclosure sale or
otherwise, to any particular interest in the Mortgaged Property and (v) agrees
that when a sale is consummated under any decree of foreclosure of this
Mortgage, upon confirmation of such sale, the master in chancery, the sheriff or
other Person making such sale, or his successor in office, shall be and is
authorized immediately to execute and deliver to the purchaser at such sale a
deed conveying the Mortgaged Property, showing the amount paid therefor, or if
purchased by the Person in whose favor the order or decree is entered, the
amount of his bid therefor.
13.14 REMEDIES NOT EXCLUSIVE. No right or remedy of Mortgagee hereunder is
exclusive of any other right or remedy hereunder or now or hereafter existing at
law or in equity or under the Note, the Credit Agreement or any of the other
Related Documents, but is cumulative and in addition thereto and Mortgagee may
recover judgment thereon, issue execution therefor, and resort to every other
right or remedy available at law or in equity or under the Note, the Credit
Agreement or any of the other Related Documents, without first exhausting or
affecting or impairing the security or any right or remedy afforded this
Mortgage. No delay in exercising, or omission to exercise, any such right or
remedy will impair any such right or remedy or will be construed to be a waiver
of any default by Mortgagor hereunder, or acquiescence therein, and such waiver
will not affect any subsequent default hereunder by Xxxxxxxxx of the same or
different nature. Every such right or remedy may be exercised independently or
concurrently, and when and so often as may be deemed expedient by Mortgagee. No
term or condition contained in this Mortgage may be waived, altered or changed
except as evidenced in writing signed by Xxxxxxxxx and Mortgagee.
13.15 NO WAIVER BY MORTGAGEE. Any failure of Mortgagee to insist upon the
strict performance by Xxxxxxxxx of any of the terms and provisions of this
Mortgage shall not be deemed to be a waiver of any such terms and provisions,
and Mortgagee, notwithstanding any such failure, shall have the right at any
time thereafter to insist upon the strict performance by Xxxxxxxxx of any and
all of the terms and provisions hereof.
13.16 NO RELEASE. Except as may be provided otherwise by applicable law,
neither Xxxxxxxxx, nor any other Person now or hereafter obligated for the
payment of the whole or any part of Mortgagor's Obligations, shall be
relieved of such obligation by reason of (i) the sale, conveyance or other
transfer of the Mortgaged Property, (ii) the failure of Mortgagee to comply with
any request of Mortgagor, or of any other Person, to take action to foreclose
this Mortgage or otherwise enforce any of the provisions of this Mortgage, the
Note, the Credit Agreement or any of the other Related Documents, (iii) the
release, regardless of consideration, of the whole or any part of the
Collateral, or (iv) any agreement or stipulation between any subsequent owner of
the Mortgaged Property and Mortgagee extending the time of payment under or
modifying the terms of the Note, the Credit Agreement, any of the other Related
Documents or this Mortgage without first having obtained the consent of
Mortgagor or such other Person. If Mortgagee shall enter into any agreement
described in clause (iv) hereof, then, notwithstanding any such agreement,
Mortgagor and all such other Persons shall continue to be liable on account of
Mortgagor's Obligations and shall continue to make such payments according to
the terms of any such agreement of extension or modification unless expressly
released and discharged in writing by Mortgagee.
13.17 RELEASE OF SECURITY. Mortgagee, without notice, may release,
regardless of consideration, any part of the Collateral, without impairing or
affecting the Mortgage Lien of or the priority of such Mortgage Lien over any
subordinate Lien.
13.18 CAPTIONS. The captions in this Mortgage are inserted for convenience
of reference only and in no way define, describe or limit the scope or intent of
this Mortgage or any of the provisions hereof.
[remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the undersigned have executed this Deed to Secure Debt,
Assignment of Leases and Rents, and Security Agreement under seal as of the day
and year first above written.
MORTGAGOR:
Signed, sealed and GENERAL MANUFACTURED HOUSING,
delivered in the presence of: INC., a Georgia corporation
/s/ Xxxxx Xxxxxx By: /s/ Xxxx X. Xxxxx
----------------------------- ----------------------------------
Unofficial Witness Name: XXXX X. XXXXX
Title: PRESIDENT
/s/ Xxxxx X. Xxxxxxxx
-----------------------------
Notary Public [CORPORATE SEAL]
Notarization Date: 12/21/95
Commission Expiration Date:
(NOTARIAL SEAL)
EXHIBIT "A"
All of that tract of land lying and being in Land Lot 125 in the 8th Land
District of Ware County, Georgia, and described as follows: To obtain the
beginning point of the property herein described, start at the northeast corner
of Land Lot 125 aforesaid and thence run south 20 degrees 40 minutes 39 seconds
west a distance of 2,864.1 feet to a point on the western margin of Industrial
Boulevard marked by a concrete post, which said point is the BEGINNING POINT of
the property described herein; thence from this beginning point run south 18
degrees 55 minutes 40 seconds west along the westerly margin of Industrial
Boulevard a distance of 650 feet marked by a concrete post; thence run north 71
degrees 04 minutes 20 seconds west a distance of 405.2 feet to a point which is
marked by a concrete post; thence run north 18 degrees 59 minutes 40 seconds
east a distance of 650 feet to a point marked by a concrete post; thence south
71 degrees 04 minutes 20 seconds east a distance of 404.45 feet to Industrial
Boulevard and the POINT OF BEGINNING, shown on plat recorded in Plat Book "A",
page 540, same being 6.041 acres.
