Mortgage of Real Estate
State of South Carolina
County of Lexington
This Mortgage is dated September 28, 2001.
The "Mortgagee" referred to in this Mortgage is The Provident Bank, an Ohio
Banking Corporation, whose address is 0 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx
00000.
The "Mortgagor" is HomeGold, Inc., whose address is 000 Xxxx Xxxxxx, Xxxxxxxxx,
XX 00000.
"Loan Agreement" is the Warehouse Loan and Security Agreement made and entered
into on the 3 day of November, 2000 between Mortgagor and Mortgagee. The Loan
Agreement and any documents renewing, extending or modifying it are referred to
herein collectively as the "Loan Agreement."
This Mortgage secures, among other obligations, a revolving line of credit
pursuant to the terms and conditions of the Loan Agreement, under the terms of
which funds may be advanced, paid back, and readvanced, PROVIDED, HOWEVER, that
the maximum principal amount outstanding under said Loan Agreement shall not at
any one time exceed the sum of $15,000,000.00.
This Mortgage is given to secure to Mortgagee the repayment of the following
amounts, with interest: (a) the indebtedness evidenced by the Loan Agreement;
(b) indebtedness owing to Mortgagee by Mortgagor under any other agreements; (c)
any Future Advances made under paragraph 18 below; (d) Expenditures by Mortgagee
to protect and preserve the property; and (e) attorney's fees, court costs and
other amounts which may be due under the Loan Agreement and this Mortgage. In
consideration of the above indebtedness and for other valuable consideration
which Xxxxxxxxx acknowledges receiving, Xxxxxxxxx does hereby mortgage, grant
and convey to Mortgagee, its successors and assigns, the following described
property or as described on Schedule A attached hereto and incorporated herein
by reference.
See Exhibit A attached hereto and incorporated herein (the "Land"),
Together with:
(a) all and singular rights, members, hereditaments and appurtenances belonging
or in any way incident or appertaining thereto;
(b) all buildings and improvements of every kind and description now or
hereafter erected or placed on the Land (the "Improvements") and all materials
intended for construction, reconstruction, alteration and repair of such
improvements now or hereafter erected thereon, all of which materials shall be
deemed to be included within the premises hereby conveyed immediately upon the
delivery thereof to the aforesaid Land, and all fixtures and articles of
personal property now or hereafter owned by the Mortgagor and attached to or
contained in and used in connection with the aforesaid Land and Improvements or
any part thereof or derived from or acquired by any proceeds of the Land or
Improvements or any part thereof, including, but not limited to, all goods,
furniture, appliances, furnishings apparatus, machinery, equipment, motors,
elevators, fittings, radiators, ranges refrigerators, awnings, shades screens,
blinds, carpeting, office equipment and other furnishings and all plumbing,
heating, lighting, cooking, laundry, ventilating, refrigerating, incinerating,
air conditioning and sprinkler equipment, telephone systems, televisions and
television systems, computer systems and fixtures and appurtenances thereof and
all renewals or replacements thereof or articles in substitution thereof,
whether or not the same are or shall be attached to the Land and improvements in
any manner ("the Tangible Personalty");
(c) all easements, rights of way, gores of land, streets, ways, alleys,
passages, sewer rights, waters, water courses, water rights and powers, and all
estates, rights, titles, interests, privileges, liberties, tenements,
hereditaments and appurtenances whatsoever, in any way belonging, relating or
appertaining to any of the property herein above described, or which hereafter
shall in any way belong, relate or be appurtenant thereto, whether now owned or
hereafter acquired by Xxxxxxxxx, and the reversion and reversions, remainder and
remainders, rents, issues and profits thereof, and all the estate, right, title,
interest, property, possession, claim and demand whatsoever, at law as well as
in equity, of Mortgagor of, in and to the same, including but not limited to all
judgments, awards of damages and settlements hereafter made resulting from
condemnation proceedings or the taking of the property described in paragraphs
(a) and (b) hereof or any part thereof under the power of eminent domain, or for
any damage (whether caused by such taking or otherwise) to the property
described in paragraphs (a) and (b) hereof any part thereof, or to any rights
appurtenant thereto (together the "Easements and Other Interests"); (d) all
proceeds of any sales or other dispositions of the property described in
paragraphs (a) and (b) hereof or any part thereof, including cash proceeds,
noncash proceeds, insurance proceeds, products, replacements, additions,
substitutions, renewals and accessions of any of the foregoing ("Proceeds");
All property referred to in paragraphs (a) - (d) above subject to the lien of
this Mortgage being referred to herein collectively as the "Property";
TO HAVE AND TO HOLD the same, together with all privileges, hereditaments,
easements, and appurtenances thereunto belonging, to the Mortgagee and the
Mortgagee's successors and assigns to secure the indebtedness recited in this
Mortgage, and should the indebtedness secured by this Mortgage be paid according
to the tenor and effect thereof when the same shall be due and payable and
should Mortgagor timely and fully discharge the obligations secured by this
Mortgage, then the Mortgage granted, conveyed and assigned by this Mortgagor
shall cease and be void, but shall be otherwise remain in full force and effect.
Mortgagor covenants that Mortgagor is lawfully seized of the Property in fee
simple absolute, that Xxxxxxxxx has good right and is lawfully authorized to
sell, convey or encumber the same, and that the Property is free and clear of
all encumbrances except as expressly provided herein. Mortgagor further
covenants to warrant and forever defend all and singular the Property unto
Mortgagee and the successors or assigns of Mortgagee from and against Xxxxxxxxx
and all persons whomsoever lawfully claiming the same or any part thereof.
It is agreed that Mortgagor shall be entitled to hold and enjoy the Property
until a Default as herein defined has occurred.
Xxxxxxxxx further covenants and agrees with Mortgagee as follows:
1. Assignment of Rents and Profits. As further security for all sums secured by
this Mortgage, Mortgagor assigns to Mortgagee all rents and profits arising from
the Property; provided, however that as long as no Default as hereinafter
defined has occurred, Mortgagor shall be entitled to collect and retain all such
rents and profits as the sole property of Mortgagor without accounting to
Mortgagee therefor.
2. Maintenance. Mortgagor will maintain the Property in good condition and
repair and will neither permit nor allow waste thereof. Mortgagor will promptly
repair or restore any portion of the Property which is damaged or destroyed by
any cause whatsoever and will promptly pay when due all costs and expenses of
such repair or restoration. Mortgagor will not remove or demolish any
improvement or fixture which is now or hereafter part of the Property and will
cut no timber on the Property without the express written consent of Mortgagee.
Mortgagee shall be entitled to specific performance of the provisions of this
paragraph.
3. Insurance. Mortgagor will keep all improvements and fixtures which are now or
hereafter part of the Property insured by such company or companies as Mortgagee
may reasonably approve for the full insurable value thereof against all risks
including, if coverage is available, flood and earthquake. Such insurance will
be payable to Mortgagee as the interest of Mortgagee may appear pursuant to the
New York standard form of mortgage clause or such other form of mortgagee clause
as may be required by the Mortgagee and will not be cancelable by either the
insurer or the insured without at least thirty (30) days prior written notice to
Mortgagee. Mortgagor hereby assigns to Mortgagee the right to collect and
receive any indemnity payment otherwise owed to Mortgagor upon any policy of
insurance insuring any portion of the Property, regardless of whether Mortgagee
is named in such policy as a person entitled to collect upon the same. Any
indemnity payment received by Mortgagee from any such policy of insurance may,
at the option of Mortgagee, (i) be applied by Mortgagee to payment of any sum
secured by this Mortgage in such order as Mortgagee may determine or (ii) be
applied in a manner determined by Mortgagee to the replacement, repair or
restoration of the portion of the Property damaged or destroyed or (iii) be
released to Mortgagor upon such conditions as Mortgagee may determine or (iv) be
used for any combination of the foregoing purposes. No portion of any indemnity
payment which is applied to replacement, repair or restoration of any portion of
the Property which is released to Mortgagor shall be deemed a payment against
any sums secured by this Mortgage. Mortgagor will keep the Property continuously
insured as herein required and will deliver to Mortgagee the original of each
policy of insurance required hereby. Mortgagor will pay each premium coming due
on any such policy of insurance and will deliver to Mortgagee proof of such
payment at least ten (10) days prior to the date such premium would become
overdue or delinquent. Upon the expiration or termination of any such policy of
insurance, Mortgagor will furnish to Mortgagee at least ten (10) days prior to
such expiration or termination the original of a renewal or replacement policy
of insurance meeting the requirements hereof. If Xxxxxxxxx fails to insure the
Property as herein required, Mortgagee may so insure the Property in the name of
the Mortgagor or in the name of Mortgagee or both, and the premiums for any such
insurance obtained by Mortgagee shall be the obligation of Mortgagor. Upon
foreclosure of this Mortgage, all right, title and interest of Mortgagor in and
to any policy of insurance upon the Property which is in the custody of
Mortgagee, including the right to unearned premiums, shall vest in the purchaser
of the Property at foreclosure, and Xxxxxxxxx hereby appoints Mortgagee as the
attorney in fact of Mortgagor to assign all right, title and interest of
Mortgagor in and to any such policy of insurance to such purchaser. This
appointment is coupled with an interest and shall be irrevocable.
4. Taxes and Assessments. Mortgagor will pay all taxes, assessments and other
charges which constitute or are secured by a lien upon the Property and will
deliver to Mortgagee proof of payment of the same not less than ten (10) days
prior to the date the same becomes delinquent; however, that Mortgagor shall be
entitled by appropriate proceedings to contest the amount or validity of such
tax, assessment or charge so long as the collection of the same by foreclosure
of the lien upon the Property is stayed during the pendancy of such proceedings
and Mortgagor deposits with the authority to which such tax, assessment or
charge is payable or with the Mortgagee appropriate security for payment of the
same, together with any applicable interest and penalties, should the same be
determined due and owing.
5. Access onto Property. Mortgagee and its successors and assigns are hereby
granted an easement and right to enter and to authorize others to enter upon the
Property for any and all purposes, including conducting environmental
investigations and audits (including taking physical samples) and such other
action deemed necessary or desirable by Mortgagee to monitor, for Mortgagee's
purposes only, compliance by Xxxxxxxxx and the Property with all local, state or
federal laws, rules or regulations. Xxxxxxxxx acknowledges that no adequate
remedy at law exists for a violation of the easement and right granted herein
and agrees that Mortgagee is entitled to specific performance of its rights
under this easement and right. The easement and right granted herein shall
continue until this Mortgage is canceled or released or record.
6. Expenditures by Mortgagee. If Mortgagor fails to make payment for restoration
or repair of the Property, for insurance premiums or for taxes, assessments or
other charges as required in this Mortgage, Mortgagee may, but shall not be
obligated to, pay for the same, and any such payment by Mortgagee will be
secured by the Mortgage and have the same rank and priority as the principal
debt secured hereby and bear interest from the date of payment at the rate
payable from time to time on outstanding principal under the Loan Agreement.
Payments made for taxes by Mortgagee shall be a first lien on the Property to
the extent of the taxes so paid with interest from the date of payment,
regardless of the rank and priority of this Mortgage. Mortgagor shall pay to
Mortgagee in cash on demand an amount equal to any payment made by Mortgagee
pursuant to this paragraph plus interest thereon as herein provided.
7. After Acquired Property. The lien of this Mortgage will automatically attach,
without further act, to all fixtures now or hereafter located in or on, or
attached to, or used or intended to be used in connection with or with the
operation of, the Property or any part thereof.
8. Environmental Indemnification. Xxxxxxxxx agrees to indemnify and hold
Mortgagee harmless from and against, and to reimburse Mortgagee with respect to,
any and all claims, demands, causes of action, losses, damages, liabilities,
costs and expenses, including reasonable attorney's fees and court costs) of any
and every kind of character, known or unknown, fixed or contingent, asserted
against or incurred by Mortgagee at any time and from time to time by reason of
or arising out of any violation of any Environmental Law and any and all matters
arising out of any act, omission, event, or circumstance (including without
limitation the presence on, generation at, disposal of, or release from the
Property of any hazardous substance or waste), regardless of whether the act,
omission, event, or circumstance constituted a violation of any Environmental
Law at the time of its existence or occurrence. The terms "hazardous substance"
and "release" shall have the meanings specified in the Comprehensive
Environmental Response Compensation and Liability Act ("CERCLA"), and the term
"disposal" shall have the meaning specified in the Resource Conservation and
Recovery Act of 1980 ("RCRA"); provided, if either CERCLA or RCRA is amended so
as to broaden the meaning of any term defined thereby, such broader meaning
shall apply subsequent to the effective date of such amendment; and provided
further, to the extent the laws of the State of South Carolina establish a
meaning for "hazardous substance," "release," "solid waste," or "disposal" which
is broader than that specified in either CERCLA or RCRA, such broader meaning
shall apply. For the purposes hereof, the term "Environmental Law(s)" shall mean
all federal, state, or local health, safety, or environmental laws, ordinances,
and regulations, requiring the removal of, or otherwise regulating the
maintenance, storage, transportation, or disposal of any hazardous substance or
any other toxic substances (including waste), asbestos, contaminants, petroleum
products, or radioactive materials. The provisions of this paragraph shall
survive the satisfaction or release of this Mortgage and the satisfaction of the
Loan Agreement and shall continue thereafter in full force and effect.
9. Condemnation. Mortgagee shall be entitled to be made a party to and to
participate in any proceeding, whether formal or informal, for condemnation or
acquisition pursuant to power of eminent domain of any portion of the Property.
Mortgagor hereby assigns to Mortgagee the right to collect and receive any
payment or award to which Xxxxxxxxx would otherwise be entitled by reason of
condemnation or acquisition pursuant to power of eminent domain of any portion
of the Property. Any such payment or award received by Mortgagee may, at the
option of Mortgagee, (I) be applied by Mortgagee to payment of any sums secured
by this Mortgage in such order as Mortgagee may determine or (ii) be applied in
a manner determined by Mortgagee to the replacement of the portion of the
Property taken and to the repair or restoration of the remaining portion of the
Property or (iii) be released to Mortgagor upon such conditions as Mortgagee may
determine or (iv) be used for any combination of the foregoing purposes. No
portion of an indemnity payment which is applied to replacement, repair or
restoration of any portion of the Property or which is released to Mortgagor
shall be deemed a payment against any sums secured by this Mortgage.
10. Transfer. At the option of Mortgagee, the indebtedness secured by this
Mortgage shall become due and payable if, without the prior written consent of
the Mortgagee, Mortgagor shall convey away the Property or any interest therein,
further encumber the Property, or suffer the placement of any mechanics' lien on
the Property; or if the title shall become vested in any other person in any
manner whatsoever.
11. Default. A "Default" shall be the occurrence or existence of any of the
events specified in the Loan Agreement or of any of the following events or
conditions and the continuance thereof for either:
(a) failure of Mortgagor to pay any installment of principal or interest due
pursuant to the Loan Agreement;
(b) failure of Mortgagor to pay any other sum secured by this Mortgage when due;
(c) failure of Mortgagor to observe or perform any covenant or agreement set
forth in this Mortgage or in the Loan Agreement;
(d) adjudication of Mortgagor as bankrupt, written admission by Xxxxxxxxx of an
inability to pay the debts of Mortgagor as they mature, assignment of the assets
of Mortgagor for the benefit of creditors, request or petition by Xxxxxxxxx for
the appointment of a receiver, trustee or conservator of the assets of Mortgagor
or for reorganization or liquidation of Mortgagor, or acquiescence by Xxxxxxxxx
to any such request or petition made by another person;
(e) default in any of the terms or conditions of the Loan Agreement for which
this Mortgage serves as security;
(f) the discovery of any hazardous substance on the Property;
(g) the appearance on any survey required hereunder of easements or
encroachments which have occurred without the written approval of the Mortgagee
and which are not removed or corrected within ten (10) business days after
written notice thereof to the Mortgagor;
(h) any court of competent jurisdiction (including without limitation the U.S.
Bankruptcy Court(s) enjoins or prohibits the Mortgagor or the Mortgagee or
either of them from performing this Mortgage, the Loan Agreement or any of the
other loan documents, and such proceedings are not discontinued or such decree
is not vacated within forty-five (45) days after the granting thereof;
(i) any representation or warranty submitted to the Mortgagee concerning the
financial condition or credit standing of the Mortgagor, proves to be false or
misleading or, in the Mortgagee's reasonable opinion, there is a threat to its
security for the Loan Agreement by reason of a material adverse change in the
financial condition or credit standing of the Mortgagor or any Guarantor of the
Loan Agreement;
(j) the Mortgagor fails to keep the Property free and clear of all encumbrances,
liens, deeds of trust, security interests and subordinate financing, except as
may be approved in writing by the Mortgagee in its sole discretion in advance;
(k) any change in the control of the Mortgagor; or
(1) any sale, transfer or conveyance, whether voluntary or involuntary, of the
Property or any portion thereof. ,
12. Remedies. Upon the occurrence of a Default as hereinabove defined, Mortgagee
may, without notice to Xxxxxxxxx, declare all sums secured by this Mortgage
immediately due and payable and may commence proceedings to collect such sums,
foreclose this Mortgage and sell the Property. If default shall be made in the
payment of any amount due under the Loan Agreement, the Mortgage or any other
instrument securing the Loan Agreement, then, upon Mortgagee's demand, Mortgagor
will pay to Mortgagee the whole amount due and payable under the Loan Agreement
and all other sums secured hereby; and if Mortgagor shall fail to pay the same
forthwith upon such demand, Mortgagee shall be entitled to sue for and to
recover judgment of the whole amount so due and unpaid together with costs and
expenses including the reasonable compensation, expenses and disbursements of a
Mortgagee's agents and attorneys incurred in connection with such suit and any
appeal in connection therewith. Mortgagee shall be entitled to sue and recover
judgment as aforesaid either before, after or during the pendency of any
proceedings for the enforcement of this Mortgage, and the right of Mortgagee to
recover such judgment shall not be affected by any taking, possession or
foreclosure sale hereunder, or by the exercise of any other right, power or
remedy for the enforcement of the terms of this Mortgage, or the foreclosure of
the lien hereof. At the foreclosure, Mortgagee shall be entitled to bid and to
purchase the Property and shall be entitled to apply the debt secured hereby, or
any portion thereof, in payment for the Property. In case of a foreclosure sale
of all or any part of the Property and of the application of the proceeds of
sale to the payment of the sums secured hereby, Mortgagee shall be entitled to
enforce payment of and to receive all amounts then remaining due and unpaid and
to recover judgment for any portion thereof remaining unpaid, with interest. The
remedies provided to Mortgagee in this paragraph shall be in addition to and not
in lieu of any other rights and remedies provided in this Mortgage or by law,
all of which rights and remedies may be exercised by Mortgagee independently,
simultaneously or consecutively in any order without being deemed to have waived
any right or remedy previously or not yet exercised.
Without in any way limiting the generality of the foregoing, Mortgagee shall
also have the following specific rights and remedies:
(a) To make any repairs to the Property or other collateral which Mortgagee
deems necessary or desirable for the purposes of sale.
(b) To exercise any and all rights of set-off which Mortgagee may have against
any account, fund, or property of any kind, tangible or intangible, belonging to
Mortgagor which shall be in the Mortgagee's possession or under its control.
(c) To cure such defaults, with the result that all costs and expenses incurred
or paid by Mortgagee in effecting such cure shall be additional charges on the
indebtedness secured hereby which bear interest at the interest rate specified
in the Loan Agreement and are payable upon demand.
(d) To foreclose on such real property and to pursue any and all remedies
available to Mortgagee at law or in equity, and in any order Mortgagee may
desire in Mortgagee's sole discretion.
13. No Waiver of One Default to Affect Another. No waiver of any event of
default hereunder shall extend to or affect any subsequent event of default or
any other event of default then existing, or impair any rights, powers or
remedies consequent thereon. If Mortgagee (a) grants forbearance or an extension
of time for the payment of any sums secured hereby; (b) takes other or
additional security for the payment thereof; (c) waives or does not exercise any
right granted in the Loan Agreement, this Mortgage or any other instrument
securing the Loan Agreement; (d) releases any part of the Property from the lien
of the Mortgage or any other instrument securing the Loan Agreement; or (e)
makes or consents to any agreement changing the terms of this Mortgage or
subordinating the lien or any charge hereof, no such act or omission shall
release, discharge, modify, change or affect the original liability under the
Loan Agreement, the Mortgage or otherwise of Mortgagor, or any subsequent
purchaser of the Property or any part thereof. No such act or omission shall
preclude Mortgagee from exercising any right, power or privilege herein granted
or intended to be granted in case of any event of default then existing or of
any subsequent event of default nor, except as otherwise expressly provided in
an instrument or instruments executed by Mortgagee, shall the lien of the
Mortgage be altered thereby.
14. Appointment of Receiver. Upon the occurrence of a Default as hereinabove
defined, Mortgagee shall be entitled to the appointment of a receiver to enter
upon and take and maintain full control of the Property in order to perform all
acts necessary and appropriate for the operation and maintenance thereof
including, but not limited to, the execution, cancellation or modification of
leases, the making of repairs to the Property and the execution or termination
of contracts providing for the management or maintenance of the Property, all on
such terms as are deemed best to protect the security of this Mortgage. The
receiver shall be entitled to receive a reasonable fee for so managing the
Property. All rents collected pursuant to this paragraph shall be applied first
to the costs of taking control of and managing the Property and collecting the
rents, including, but not limited to, attorney's fees, receiver's fees, premium
of receiver's bonds, cost of repairs to the Property, premiums on insurance
policies, taxes, assessments and other charges on the Property and the costs of
discharging any obligation or liability of Mortgagor as lessor or landlord of
the Property and then to the sums secured by this Mortgage. Mortgagee or the
receiver shall have access to the books and records used in the operation and
maintenance of the Property and shall be liable to account only for those rents
actually received. Mortgagee shall not be liable to Mortgagor, anyone claiming
under or through Mortgagor, or anyone having an interest in the Property by
reason of anything done of left undone by Mortgagor under this paragraph. If the
rents of the Property are not sufficient to meet the costs of taking control of
and managing the Property and collecting the rent, Mortgagee, at its sole
option, may advance funds to meet the costs. Any funds expended by Mortgagee for
such purposes shall become indebtedness of Mortgagor to Mortgagee secured by
this Mortgage. Unless Mortgagee and Mortgagor agree in writing to other terms of
payment, such amounts shall be payable upon notice from Mortgagee to Mortgagor
requesting payment thereof and shall bear interest from the date of disbursement
at the rate stated in the Loan Agreement. The entering upon and taking and
maintaining of control of the Property by Mortgagee or the receiver and the
application of rents as provided herein shall not cure or waive any default
hereunder or invalidate any other right or remedy of Mortgagee hereunder.
Notwithstanding the appointment of any receiver or other custodian, Mortgagee
shall be entitled as secured party hereunder to the possession and control of
any cash deposits or instruments at the time held by, or payable under the terms
of this Mortgage to Mortgagee.
15. Waiver by Mortgagee. Mortgagee may, in the sole discretion of Mortgagee,
from time to time waive or forbear from enforcing any provision of this
Mortgage, and such waiver or forbearance shall not be deemed a waiver by
Mortgagee of any right or remedy provided herein or be deemed a waiver of the
right at any later time to enforce strictly all provisions of this Mortgage and
to exercise any al all remedies provided herein and by law.
16. Waiver by Xxxxxxxxx. Xxxxxxxxx understands that upon default hereunder,
among the remedies set out herein and in the above referenced Loan Agreement,
the Mortgagee may foreclose upon the mortgaged premises and ask for a deficiency
judgement pursuant to Section 29-3-660, South Carolina Code of Laws (1976).
Mortgagor hereby expressly waives and relinquishes any appraisal rights which
Mortgagor may have under Section 29-3-680 through Section 29-3-760, South
Carolina Code of Laws (1976) as amended and understands and agrees that a
deficiency judgment, if pursued by Mortgagee, shall be determined by the highest
price bid at the judicial sale of the property.
17. Notices. Any notice given by either party hereto to the other party shall be
in writing and shall be signed by the party giving notice. Any notice or other
document to be delivered to either party hereto by the other party shall be
deemed delivered if mailed postage prepaid to the party to whom directed at the
latest address of such party known to the party sending the same. This paragraph
shall not be deemed to prohibit any other manner of delivering a notice or other
document.
18. Future Advances. Mortgagee, at its option, may make Future Advances to
Mortgagor. Such Future Advances, with interest at the rate payable from time to
time on the outstanding principal under the Loan Agreement, shall be secured by
this Mortgage when evidenced by the Loan Agreement or by any other note or
agreement stating that it is secured by this Mortgage or when advanced under the
terms of this Mortgage. Mortgagee may make such Future Advances (a) at the
request of Xxxxxxxxx, whether or not there is any obligation to make Future
Advances; (b) pursuant 'to an advance of funds hereunder; or (c) to pay, with or
without the consent of Xxxxxxxxx, any amounts which may be due under any other
mortgage or lien affecting the Property.
19. Additional Documents. The Mortgagor agrees to execute and deliver to the
Mortgagee, upon the request of the Mortgagee from time to time hereafter, all
financing statements and other documents reasonably required to perfect and
maintain the lien and security interest created by the Mortgage.
20. Greater Estate. In the event the Mortgagor is the owner of a leasehold
estate with respect to any portion of the Property and, prior to the
satisfaction of the indebtedness and the cancellation of this Mortgage of
record, Xxxxxxxxx obtains a fee estate in such portion of the Property, then,
such fee estate shall automatically, and without further action of any kind on
the part of Mortgagor, be and become subject to the security lien of this
Mortgage.
21. Imposition of Tax. In the event of any state, federal, municipal or other
governmental law, order, rule or regulation, in any manner changing or modifying
the laws now in force governing the taxation of debts secured by mortgages or
the manner of collecting taxes so as to affect adversely the Mortgagee, the
Mortgagor will promptly pay any such tax on or before the due date thereof; and
if the Mortgagor fails to make such prompt payment or if any such state,
federal, municipal or other governmental law, order, rule or regulation
prohibits Mortgagor from making such payment or would penalize Mortgagee if
Mortgagor makes such payment, then the entire balance of the Loan shall become
due and payable at the demand of the Mortgagee.
22. Changes, etc. Neither the Mortgage nor any term hereof may be changed,
waived, discharged or terminated orally, or by any action or inaction, but only
by an instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought. Any agreement hereafter made
by Mortgagor and Mortgagee relating to the Mortgage shall be superior to the
rights of the holder of any intervening lien or encumbrance.
23. Partial Foreclosure. In the event the Property is comprised of more than one
parcel of real property, Mortgagor hereby waives any right to require Mortgagee
to foreclose or exercise any of its other remedies against all of the Property
as a whole or to require Mortgagee to foreclose or exercise such remedies
against one portion of the Property prior to the foreclosure or exercise of said
remedies against other portions of the Property.
24. Miscellaneous.
(a) The agreements herein shall bind and inure to the benefit of the Mortgagor,
Mortgagee and their respective successors and assigns.
(b) Whenever in this Mortgage one of the parties hereto is named or referred to,
the successors and assigns of such party shall be included and all covenants and
agreements contained in this Mortgage by or on behalf of the Mortgagor or by or
on behalf of the Mortgagee shall bind and inure to the benefits of their
representatives, heirs, successors and assigns, whether so expressed or not.
(c) The headings of the sections, paragraphs and subdivisions of this Mortgage
are for the convenience of reference only, are not be considered a part hereof
and shall not limit or otherwise affect any of the terms hereof.
(d) If any provision of this Mortgage conflicts with applicable law, such
conflict shall not affect other provision of this Mortgage which can be given
effect without the conflicting provision, and to this end the provisions of this
Mortgage are, declared to be severable.
(e) This Mortgage shall be governed by and construed and enforced in accordance
with the laws of South Carolina.
(f) Mortgagee may make or cause to be made reasonable entries upon and
inspections of the Property upon giving Mortgagor prior notice.
(g) All covenants of Mortgagor shall be joint and several.
(h) The undersigned Xxxxxxxxx represents to Mortgagee that such Mortgagor is
benefited by the loans made by Mortgagee to Mortgagor pursuant to the Loan
Agreement, and that adequate and sufficient consideration has been given to
Mortgagor for its execution and delivery of this Mortgage.
IN WITNESS WHEREOF, Xxxxxxxxx has executed this Mortgage under seal the day and
year first above written. Signed, sealed and delivered In the presence of:
HomeGold, Inc., a South Carolina Corporation, successor by statutory merger to
HomeSense Financial Corp., a South Carolina Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
Its: President
STATE OF SOUTH CAROLINA
COUNTY OF LEXINGTON
PROBATE
PERSONALLY APPEARED BEFORE ME, the undersigned witness, who, being-duly sworn,
deposes and states that (s)he saw the within named Mortgagor by Xxxxxxx Xxxxxxx
its President sign, seal and deliver the foregoing Mortgage and that (s)he with
the other witness whose name is subscribed above witnessed the execution
thereof.
Witness
SWORN to before me this 28th day
of September, 2001
Notary Public of South Carolina
My Commission Expires: 3/22/2009
EXHIBIT "A"
All those certain pieces, parcels or tracts of land, with improvements thereon,
situate, lying and being in the Town of Lexington, County of Lexington, State of
South Carolina, and being delineated as Tract "C", containing 3.7221 acres, on a
plat entitled "BOUNDARY SURVEY OF 5 TRACTS" prepared for BB&T Branch Bank, by
Xxxx & Xxxxxxxxxxx, Inc. date March 31, 1998, recorded in the Office of the
Register of Deeds for Lexington County in Plat Slide 383 at Plat 9 (the
"Referenced Plat").
TOGETHER WITH a nonexclusive easement and right of way fifty feet (50.0') in
width for the use and benefit of Tract "C" as shown on the Referenced Plat for
ingress, egress and regress over and across an existing ingress/egress easement
fifty feet (50.0') in width more particularly shown on the Referenced Plat as
Tract "B," containing .03927 acre (17,706 square feet).
DERIVATION: Limited Warranty Deed of Sunset Real Estate Investment Corp., a
South Carolina Corporation, to HomeSense Financial Corp., a South Carolina
Corporation, dated February 17, 2000, recorded in the Office of the RMC/Clerk of
Court for Lexington County in Book 5653, Page 5, on February 17, 2000.
TAX MAP NOS.: 0000-00-000; 0000-00-000.
