EXHIBIT 10.27
THIS INSTRUMENT WAS PREPARED BY,
AND WHEN RECORDED SHOULD BE
RETURNED TO:
Xxxxxx & Xxxxxxx LLP (JFC)
Pillsbury Center South
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS
AND FIXTURE FINANCING STATEMENT
THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND
FIXTURE FINANCING STATEMENT (this "Mortgage") is made as of January 30, 1997, by
AVECOR CARDIOVASCULAR INC., a Minnesota corporation ("Borrower"), having its
principal offices at 00000 Xxxxxx Xxxx 0, Xxxxxxxx, XX 00000, in favor of FIRST
BANK NATIONAL ASSOCIATION, a national banking association ("Lender"), having an
office at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxx 00000.
RECITALS
A. Lender has lent, or agreed to lend, to Borrower the principal sum of
FIVE MILLION ONE HUNDRED SIXTY-SEVEN THOUSAND FIVE HUNDRED and no/100 Dollars
($5,167,500.00) (the "Loan"), to be repaid with interest thereon, as evidenced
by Borrower's Note (the "Note", which term shall include any amendment,
modification, supplement, extension, renewal, replacement or restatement
thereof), which Loan is the subject of a Loan Agreement between Borrower and
Lender (the "Loan Agreement", which term shall include any amendment,
modification, supplement, extension, renewal, replacement or restatement
thereof). The Note, the Loan Agreement and any other Loan Document (as defined
in the Loan Agreement) are each dated the same date as this Mortgage, are hereby
incorporated by reference, and, together with this Mortgage, as any of the same
may be amended, modified, supplemented, extended, renewed, replaced or restated,
are sometimes collectively referred to as the "Loan Documents".
B. The obligations secured by this Mortgage (the "Obligations") are as
follows:
(i) the principal amount of $5,167,500.00 or so much thereof as
may be advanced by Lender under the Note and pursuant to the Loan
Agreement; plus
(ii) interest on the amount advanced and unrepaid, at the
interest rate or rates provided in the Note; plus
(iii) all other amounts payable by Borrower and all other
agreements of Borrower under the Loan Documents as the same now exist or
may hereafter be amended.
C. The Obligations shall mature on or before February 1, 2002 (the
"Maturity Date").
D. The maximum principal indebtedness secured hereby is $5,167,500.00
plus amounts which may be advanced by Lender in protection of the Mortgaged
Property or this Mortgage.
NOW, THEREFORE, Borrower, in consideration of Lender making the Loan, and
to secure the Loan and payment and performance of the Obligations, hereby
grants, bargains, sells, conveys and mortgages to Lender, its successors and
assigns, forever, with power of sale, and grants to Lender, its successors and
assigns, a security interest in, the following, all of which is called the
"Mortgaged Property":
A. LAND AND IMPROVEMENTS
The land described in Exhibit A attached hereto and all mineral rights,
hereditaments, easements and appurtenances thereto (collectively the "Land"),
and all improvements and structures thereon (the "Improvements"); and
B. FIXTURES AND PERSONAL PROPERTY
All fixtures (the "Fixtures"), and all machinery, equipment and personal
property (collectively the "Personal Property") now or hereafter located on, in
or under the Land and the Improvements, used in connection with the Land or the
Improvements, and which are owned by Borrower or in which Borrower has an
interest, including any construction and building materials stored on and to be
included in the Improvements, plus any repairs, replacements and betterments to
any of the foregoing and the proceeds and products thereof; and
C. LEASES AND RENTS
All rights of Borrower with respect to tenants or occupants now or
hereafter occupying any part of the Land or the Improvements, if any, including
all leases and licenses and rights in connection therewith, whether oral or
written (collectively the "Leases"), and all rents, income, both from services
and occupation, royalties, revenues and payments, including prepayments and
security deposits (collectively the "Rents"), which are now or hereafter due or
to be paid in connection with the Land, the Improvements, the Fixtures or the
Personal Property; and
D. GENERAL INTANGIBLES
All general intangibles of Borrower which relate to any of the Land, the
Improvements, the Fixtures, the Personal Property, the Leases or the Rents,
including proceeds of insurance and condemnation or conveyance of the Land and
the Improvements, accounts, trade names, contract rights, accounts receivable
and bank accounts, including, without limitation, all right, title and
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interest of Borrower in, to and under the Development Agreement referred to as
item 9 in Exhibit A hereto (including, without limitation, the right to receive
payments pursuant to Section 4.3 thereof and pursuant to the Note to be issued
pursuant to said Development Agreement by the Brooklyn Park Economic Development
Authority); and
E. AFTER ACQUIRED PROPERTY AND PROCEEDS
All after acquired property similar to the property herein described and
conveyed which may be subsequently acquired by Borrower and used in connection
with the Land, the Improvements, the Fixtures, the Personal Property and other
property; and all cash and non-cash proceeds and products of all of the
foregoing property.
TO HAVE AND TO HOLD the same, and all estate therein, together with all the
rights, privileges and appurtenances thereunto belonging, to the use and benefit
of Lender, its successors and assigns, forever.
PROVIDED NEVERTHELESS, should Borrower pay and perform all the Obligations,
then these presents will be of no further force and effect, and this Mortgage
shall be satisfied by Lender, at the expense of Borrower.
This Mortgage constitutes an assignment of rents and profits within the
meaning of Minnesota Statutes, Sections 559.17 and 576.01, and is intended to
comply fully with the provisions thereof, and to afford Lender, to the fullest
extent allowed by law, the rights and remedies of a mortgage lender or secured
lender pursuant thereto.
This Mortgage also constitutes a security agreement within the meaning of
the Uniform Commercial Code as in effect in the State of Minnesota (the "UCC"),
with respect to all property described herein as to which a security interest
may be granted and/or perfected pursuant to the UCC, and is intended to afford
Lender, to the fullest extent allowed by law, the rights and remedies of a
secured party under the UCC.
BORROWER FURTHER agrees as follows:
ARTICLE I
AGREEMENTS
SECTION 1.1 PERFORMANCE OF OBLIGATIONS; INCORPORATION BY REFERENCE.
Borrower shall pay and perform the Obligations. Time is of the essence hereof.
All of the covenants, obligations, agreements, warranties and representations of
Borrower contained in the Loan Agreement and the other Loan Documents and all of
the terms and provisions thereof, are hereby incorporated herein and made a part
hereof by reference as if fully set forth herein.
SECTION 1.2 FURTHER ASSURANCES. If Lender requests, Borrower shall sign
and deliver and cause to be recorded as Lender shall direct any further
mortgages, instruments of further
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assurance, certificates and other documents as Lender reasonably may consider
necessary or desirable in order to perfect, continue and preserve the
Obligations and Lender's rights, title, estate, liens and interests under the
Loan Documents. Borrower further agrees to pay to Lender, upon demand, all costs
and expenses incurred by Lender in connection with the preparation, execution,
recording, filing and refiling of any such documents, including attorneys' fees
and title insurance costs.
SECTION 1.3 SALE, TRANSFER, ENCUMBRANCE. If Borrower sells, conveys,
transfers or otherwise disposes of, or encumbers, any part of its interest in
the Mortgaged Property, whether voluntarily, involuntarily or by operation of
law, without the prior written consent of Lender, Lender shall have the option
to declare the Obligations immediately due and payable without notice. Included
within the foregoing actions requiring prior written consent of Lender are: (a)
sale by deed or contract for deed; (b) mortgaging or granting a lien on the
Mortgaged Property; (c) leasing any portion of the Improvements or the Mortgaged
Property; (d) a transfer which changes the persons in control of Borrower or
which transfers more than 25% of the beneficial interest in Borrower, except for
transfers to related or affiliated entities, and (e) a transfer in the ownership
of stock of Borrower which will result in one person or entity or his, her or
its family members or affiliates controlling Borrower. Borrower shall give
notice of any proposed action to Lender at least thirty (30) days prior to
taking such action. Borrower shall pay all costs and expenses incurred by Lender
in evaluating any such action. Lender may condition such consent upon
modification of the Loan Documents or payment of fees. No such action shall
relieve Borrower from liability for the Obligations. The consent by Lender to
any action shall not constitute a waiver of the necessity of such consent to any
subsequent action.
SECTION 1.4 INSURANCE. Borrower shall obtain, maintain and keep in full
force and effect (and upon request of Lender shall furnish to Lender copies of)
policies of insurance as described in, and meeting the requirements set forth
in, Exhibit B attached hereto, and upon request of Lender shall furnish to
Lender proof of payment of all premiums for such insurance. At least ten (10)
days prior to the termination of any such coverage, Borrower shall provide
Lender with evidence satisfactory to Lender that such coverage will be renewed
or replaced upon termination with insurance that complies with the provisions of
this Section. Borrower, at its sole cost and expense, from time to time when
Lender shall so request, will provide Lender with evidence, in a form acceptable
to Lender, of the full insurable replacement cost of the Mortgaged Property. All
property (including boiler and machinery) and liability insurance policies
maintained by Borrower pursuant to this Section shall (i) include effective
waivers by the insurer of all claims for insurance premiums against Lender, and
(ii) provide that any losses shall be payable notwithstanding (a) any act of
negligence by Borrower or Lender, (b) any foreclosure or other proceedings or
notice of foreclosure sale relating to the Mortgaged Property, or (c) any
release from liability or waiver of subrogation rights granted by the insured.
All insurance policies maintained by Borrower pursuant to the foregoing
provisions shall respond on a primary basis relative to any other insurance
carried by Lender in the event of loss. Insurance terms not otherwise defined
herein shall be interpreted consistent with insurance industry usage.
SECTION 1.5 TAXES, LIENS AND CLAIMS, UTILITIES. Borrower, at least five
(5) days before any penalty attaches thereto, shall pay and discharge, or cause
to be paid and discharged, all
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taxes, assessments and governmental charges and levies (collectively
"Impositions") imposed upon or against the Mortgaged Property or the Rents, or
upon or against the Obligations, or upon or against the interest of Lender in
the Mortgaged Property or the Obligations, except Impositions measured by the
income of Lender. Borrower shall provide evidence of such payment at Lender's
request. Borrower shall keep the Mortgaged Property free and clear of all liens,
encumbrances, easements, covenants, conditions, restrictions and reservations
(collectively "Liens") except those listed on Exhibit A attached hereto (the
"Permitted Encumbrances"). Borrower shall pay or cause to be paid when due all
charges or fees for utilities and services supplied to the Mortgaged Property.
Notwithstanding anything to the contrary contained in this Section, Borrower
shall not be required to pay or discharge any Imposition or Lien so long as
Borrower shall in good faith, and after giving notice to Lender, contest the
same by appropriate legal proceedings. If Borrower contests any Imposition or
Lien against the Mortgaged Property, Borrower shall provide such security to
Lender as Lender shall reasonably require against loss or impairment of
Borrower's ownership of or Lender's lien on the Mortgaged Property and shall in
any event pay such Imposition or Lien before loss or impairment occurs.
SECTION 1.6 ESCROW PAYMENTS. If requested by Lender, Borrower shall
deposit with Lender monthly on the same date as payments are due under the Note
the amount reasonably estimated by Lender to be necessary to enable Lender to
pay, at least five (5) days before they become due, all Impositions against the
Mortgaged Property and the premiums upon all insurance required hereby to be
maintained with respect to the Mortgaged Property. All funds so deposited shall
secure the Obligations. Such deposits shall be held by Lender, or its nominee,
in a non-interest bearing account and may be commingled with other funds. Such
deposits shall be used to pay such Impositions and insurance premiums when due.
Any excess sums so deposited shall be retained by Lender and shall be applied to
pay said items in the future, unless the Obligations have been paid and
performed in full, in which case all excess sums so paid shall be refunded to
Borrower. Upon the occurrence of an Event of Default, Lender may apply any funds
in said account against the Obligations in such order as Lender may determine.
SECTION 1.7 MAINTENANCE AND REPAIR; COMPLIANCE WITH LAWS. Borrower shall
cause the Mortgaged Property to be operated, maintained and repaired in safe and
good repair, working order and condition, reasonable wear and tear excepted;
shall not commit or permit waste thereof; except as provided in any Loan
Document, shall not remove, demolish or substantially alter the design or
structural character of any Improvements without the prior written consent of
Lender; shall complete or cause to be completed forthwith any Improvements which
are now or may hereafter be under construction upon the Land; shall comply or
cause compliance with all laws, statutes, ordinances and codes, and governmental
rules, regulations and requirements, applicable to the Mortgaged Property or the
manner of using or operating the same, and with any covenants, conditions,
restrictions and reservations affecting the title to the Mortgaged Property, and
with the terms of all insurance policies relating to the Mortgaged Property; and
shall obtain and maintain in full force and effect all consents, permits and
licenses necessary for the use and operation of the Mortgaged Property.
SECTION 1.8 INDEMNITY. Borrower shall indemnify Lender and its
directors, officers, agents and employees (collectively the "Indemnified
Parties") against, and hold the Indemnified
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Parties harmless from, all losses, damages, suits, claims, judgments, penalties,
fines, liabilities, costs and expenses by reason of, or on account of, or in
connection with the construction, reconstruction or alteration of the Mortgaged
Property, or any accident, injury, death or damage to any person or property
occurring in, on or about the Mortgaged Property or any street, drive, sidewalk,
curb or passageway adjacent thereto. The indemnity contained in this Section
shall include costs of defense of any such claim asserted against an Indemnified
Party, including attorneys' fees. The indemnity contained in this Section shall
survive payment and performance of the Obligations and satisfaction and release
of this Mortgage and any foreclosure thereof or acquisition of title by deed in
lieu of foreclosure.
SECTION 1.9 APPRAISALS. Lender shall have the right from time to time,
but not more often than once during any twelve (12)-month period, to obtain an
appraisal of the Mortgaged Property in form and substance satisfactory to Lender
and prepared by an independent MAI appraiser selected by Lender. Borrower shall
reimburse Lender for the cost incurred for any such appraisal within ten (10)
days following demand therefor by Lender, if Lender has reason to believe that
the value of the Mortgaged Property has declined materially, and such appraisal
determines that the original principal amount of the Note exceeds seventy-five
percent (75%) of the value of the Mortgaged Property.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Borrower makes the following representations and warranties:
SECTION 2.1 OWNERSHIP, LIENS, COMPLIANCE WITH LAWS. Borrower owns the
Mortgaged Property free from all Liens, except the Permitted Encumbrances. All
applicable zoning, environmental, land use, subdivision, building, fire, safety
and health laws, statutes, ordinances, codes, rules, regulations and
requirements affecting the Mortgaged Property permit the current use and
occupancy thereof, and Borrower has obtained all consents, permits and licenses
required for such use. Borrower has examined and is familiar with all applicable
covenants, conditions, restrictions and reservations, and with all applicable
laws, statutes, ordinances, codes and governmental rules, regulations and
requirements affecting the Mortgaged Property, and the Mortgaged Property
complies with all of the foregoing.
SECTION 2.2 USE. The Mortgaged Property is not homestead property nor is
it agricultural property or in agricultural use.
SECTION 2.3 UTILITIES; SERVICES. The Mortgaged Property is serviced by
all necessary public utilities, and all such utilities are operational and have
sufficient capacity. There is no contract or agreement providing for services to
or maintenance of the Mortgaged Property which cannot be canceled upon 30 days'
or less notice.
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ARTICLE III
CASUALTY; CONDEMNATION
SECTION 3.1 CASUALTY, REPAIR, PROOF OF LOSS. If any portion of the
Mortgaged Property shall be damaged or destroyed by any cause (a "Casualty"),
Borrower shall:
(a) give immediate notice to the Lender; and
(b) promptly commence and diligently pursue to completion (in accordance
with plans and specifications approved by Lender) the restoration, repair and
rebuilding of the Mortgaged Property as nearly as possible to its value,
condition and character immediately prior to the Casualty; and
(c) if the Casualty is covered by insurance, immediately make proof of
loss and collect all insurance proceeds, all such proceeds to be payable to
Lender or as Lender shall direct. If an Event of Default shall be in existence,
or if Borrower shall fail to provide notice to Lender of filing proof of loss,
or if Borrower shall not be diligently proceeding, in Lender's reasonable
opinion, to collect such insurance proceeds, then Lender may, but is not
obligated to, make proof of loss, and is authorized, but is not obligated, to
settle any claim with respect thereto, and to collect the proceeds thereof.
Borrower shall not accept any settlement of an insurance claim, the result of
which shall be a payment which is $10,000 or more less than the full amount of
the claim, without the prior written consent of Lender.
SECTION 3.2 USE OF INSURANCE PROCEEDS. Lender shall make the net
insurance proceeds received by it (after reimbursement of Lender's out-of pocket
costs of collecting and disbursing the same) available to Borrower to pay the
cost of restoration, repair and rebuilding of the Mortgaged Property, subject to
the following conditions:
(a) There shall be no Event of Default in existence at the time of any
disbursement of the insurance proceeds.
(b) Lender shall have determined, in its reasonable discretion, that the
cost of restoration, repair and rebuilding is and will be equal to or less than
the amount of insurance proceeds and other funds deposited by Borrower with
Lender.
(c) Lender shall have determined, in its reasonable discretion, that the
restoration, repair and rebuilding can be completed in accordance with plans and
specifications approved by Lender (such approval not to be unreasonably
withheld), in accordance with codes and ordinances and in accordance with the
terms, and in any event not less than six (6) months prior to the Maturity Date.
(d) All funds shall be held in an interest-bearing account and shall be
disbursed, at Lender's option, in accordance with Lender's customary
disbursement procedures for construction loans.
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(e) The Casualty shall have occurred more than twelve (12) months prior to
the Maturity Date.
If any of these conditions shall not be satisfied, then Lender shall have the
right to use the insurance proceeds to prepay the Loan in accordance with the
Note. If any insurance proceeds shall remain after completion of the
restoration, repair and rebuilding of the Mortgaged Property, they shall be
disbursed to Borrower, or at the Lender's discretion, used to prepay the Loan in
accordance with the Note.
SECTION 3.3 CONDEMNATION. If any portion of the Mortgaged Property shall
be taken, condemned or acquired pursuant to exercise of the power of eminent
domain or threat thereof (a "Condemnation"), Borrower shall:
(a) give immediate notice thereof to Lender, and send a copy of each
document received by Borrower in connection with the Condemnation to Lender
promptly after receipt; and
(b) diligently pursue any negotiation and prosecute any proceeding in
connection with the Condemnation at Borrower's expense. If an Event of Default
shall be in existence, or if Borrower, in Lender's reasonable opinion, shall not
be diligently negotiating or prosecuting the claim, Lender is authorized, but
not required, to negotiate and prosecute the claim and appear at any hearing for
itself and on behalf of Borrower and to compromise or settle all compensation
for the Condemnation. Lender shall not be liable to Borrower for any failure by
Lender to collect or to exercise diligence in collecting any such compensation.
Borrower shall not compromise or settle any claim resulting from the
Condemnation if such settlement shall result in payment of $10,000 or more less
than Lender's reasonable estimate of the damages therefrom. All awards shall be
paid to Lender.
SECTION 3.4 USE OF CONDEMNATION PROCEEDS. Lender shall make the net
proceeds of any Condemnation received by it (after reimbursement of Lender's
out-of-pocket costs of collecting and disbursing the same) available to Borrower
for restoration, repair and rebuilding of the Mortgaged Property, subject to the
following conditions:
(a) There shall be no Event of Default in existence at the time of any
disbursement of the condemnation proceeds.
(b) Lender shall determined, in its reasonable discretion, that the cost
of restoration, repair and rebuilding is and will be equal to or less than the
amount of condemnation proceeds and other funds deposited by Borrower with
Lender.
(c) Lender shall have determined, in its reasonable discretion, that the
restoration, repair and rebuilding can be completed in accordance with plans and
specifications approved by Lender (such approval not to be unreasonably
withheld), in accordance with codes and
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ordinances and in accordance with the terms, and in any event not less than six
(6) months prior to the Maturity Date.
(d) All funds shall be held in an interest-bearing account and shall be
disbursed, at Lender's option, in accordance with Lender's customary
disbursement procedures for construction loans.
(e) The Condemnation shall have occurred more than twelve (12) months
prior to the Maturity Date.
If any of these conditions shall not be satisfied, then Lender shall have the
right to use the condemnation proceeds to prepay the Loan in accordance with the
Note. If any condemnation proceeds shall remain after completion of the
restoration, repair and rebuilding of the Mortgaged Property, they shall be
disbursed to Borrower, or at Lender's discretion, used to prepay the Loan in
accordance with the Note.
ARTICLE IV
DEFAULTS AND REMEDIES
SECTION 4.1 EVENTS OF DEFAULT. An Event of Default, as defined in the
Loan Agreement, shall constitute an Event of Default hereunder.
SECTION 4.2 REMEDIES. Upon the occurrence of an Event of Default
described in Sections 6.1(f), (g) or (h) of the Loan Agreement, all of the
Obligations shall be accelerated and become immediately due and payable without
notice or declaration to Borrower. Upon the occurrence of one or more other
Events of Default, all of the Obligations, at the option of Lender, shall be
accelerated and become immediately due and payable upon notice to Borrower. In
either event, the Obligations shall be due and payable without presentment,
demand or further notice of any kind. Lender shall have the right to proceed to
protect and enforce its rights by one or more of the following remedies:
(a) LENDER SHALL HAVE THE RIGHT TO BRING SUIT either for damages, for
specific performance of any agreement contained in any Loan Document, for the
foreclosure of this Mortgage, or for the enforcement of any other appropriate
legal or equitable remedy.
(b) LENDER SHALL HAVE THE RIGHT TO SELL THE MORTGAGED PROPERTY AT PUBLIC
AUCTION AND CONVEY THE SAME TO THE PURCHASER IN FEE SIMPLE, as provided by law,
Borrower to remain liable for any deficiency. Said sale may be as one tract or
otherwise, at the sole option of Lender. In the event of any sale of the
Mortgaged Property pursuant to any judgment or decree of any court or at public
auction or otherwise in connection with the enforcement of any of the terms of
this Mortgage, Lender, its successors or assigns, may become the purchaser, and
for the purpose of making settlement for or payment of the purchase price, shall
be entitled to deliver over and use the Note and any claims for interest accrued
and unpaid thereon, together with all other sums, with interest, advanced or
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secured hereby and unpaid hereunder, in order that there may be credited as paid
on the purchase price the total amount of the Obligations then due, including
principal and interest on the Note and all other sums, with interest, advanced
or secured hereby and unpaid hereunder or under any of the other Loan Documents.
(c) LENDER SHALL HAVE THE RIGHT TO OBTAIN THE APPOINTMENT OF A RECEIVER at
any time after the occurrence of an Event of Default. Lender may apply for the
appointment of a receiver to the district court for the county where the
Mortgaged Property or any part thereof is located, by an action separate from
any foreclosure of this Mortgage pursuant to Minnesota Statutes Chapter 580 or
pursuant to Minnesota Statutes Chapter 581, or as a part of the foreclosure
action under said Chapter 581 (it being agreed that the existence of a
foreclosure pursuant to said Chapter 580 or a foreclosure action pursuant to
said Chapter 581 is not a prerequisite to any action for a receiver hereunder).
Lender shall be entitled to the appointment of a receiver without regard to
waste, adequacy of the security or solvency of Borrower. The receiver, who shall
be an experienced property manager, shall collect (until the Obligations are
fully paid and satisfied and, in the case of a foreclosure sale, during the
entire redemption period) the Rents, and shall manage the Mortgaged Property,
execute Leases within or beyond the period of the receivership if approved by
the court and apply all rents, profits and other income collected by him in the
following order:
(i) to the payment of all reasonable fees of the receiver, if
any, approved by the court;
(ii) to the repayment of tenant security deposits, with interest
thereon, as required by Minnesota Statutes, Section 504.20;
(iii) to the payment when due of delinquent or current real estate
taxes or special assessments with respect to the Mortgaged Property, or the
periodic escrow for the payment of the same;
(iv) to the payment when due of premiums for insurance of the
type required by this Mortgage, or the periodic escrow for the payment of the
same;
(v) to the payment for the keeping of the covenants required of
a lessor or licensor pursuant to Minnesota Statutes, Section 504.18, subdivision
1;
(vi) to the payment of all expenses for normal maintenance of the
Mortgaged Property; and
(vii) the balance to Lender (a) if received prior to the
commencement of a foreclosure, to be applied to the Obligations, in such order
as Lender may elect and (b) if received after the commencement of a foreclosure,
to be applied to the amount required to be paid to effect a reinstatement prior
to foreclosure sale, or, after a foreclosure sale to any deficiency and
thereafter to the amount required to be paid to effect a redemption, all
pursuant to Minnesota Statutes, Sections 580.30, 580.23 and 581.10, with any
excess to be paid to Borrower.
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Provided, that if this Mortgage is not reinstated nor the Mortgaged Property
redeemed as provided by said Sections 580.30, 580.23 or 581.10, the entire
amount paid to Lender pursuant hereto shall be the property of Lender together
with all or any part of the Mortgaged Property acquired through foreclosure.
Lender shall have the right, at any time and without limitation, as
provided in Minnesota Statutes, Section 582.03, to advance money to the receiver
to pay any part or all of the items which the receiver should otherwise pay if
cash were available from the Mortgaged Property and sums so advanced, with
interest at the Default Rate set forth in the Note, shall be secured hereby, or
if advanced during the period of redemption shall be part of the sum required to
be paid to redeem from the sale.
(d) LENDER SHALL HAVE THE RIGHT TO COLLECT THE RENTS from the Mortgaged
Property and apply the same in the manner hereinbefore provided with respect to
a receiver. For that purpose, Lender may enter and take possession of the
Mortgaged Property and manage and operate the same and take any action which, in
Lender's judgment, is necessary or proper to collect the Rents and to conserve
the value of the Mortgaged Property. Lender may also take possession of, and for
these purposes use, any and all of the Personal Property. The expense (including
any receiver's fees, attorneys' fees, costs and agent's compensation) incurred
pursuant to the powers herein contained shall be secured by this Mortgage.
Lender shall not be liable to account to Borrower for any action taken pursuant
hereto other than to account for any Rents actually received by Lender.
Enforcement hereof shall not cause Lender to be deemed a mortgagee in possession
unless Lender elects in writing to be a mortgagee in possession.
(e) LENDER SHALL HAVE THE RIGHT TO ENTER AND TAKE POSSESSION of the
Mortgaged Property and manage and operate the same in conformity with all
applicable laws and take any action which, in Lender's judgment, is necessary or
proper to conserve the value of the Mortgaged Property.
(f) LENDER SHALL HAVE ALL OF THE RIGHTS AND REMEDIES PROVIDED IN THE
UNIFORM COMMERCIAL CODE including the right to proceed under the Uniform
Commercial Code provisions governing default as to any Personal Property
separately from the real estate included within the Mortgaged Property, or to
proceed as to all of the Mortgaged Property in accordance with its rights and
remedies in respect of said real estate. If Lender should elect to proceed
separately as to such Personal Property, Borrower agrees to make such Personal
Property available to Lender at a place or places acceptable to Lender, and if
any notification of intended disposition of any of such Personal Property is
required by law, such notification shall be deemed reasonably and properly given
if given at least ten (10) days before such disposition in the manner
hereinafter provided.
(g) LENDER SHALL HAVE THE RIGHT TO FILE PROOF OF CLAIM and other documents
as may be necessary or advisable in order to have its claims allowed in any
receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceedings affecting Borrower, its creditors or
its property, for the entire amount due and payable by Borrower in respect of
the Obligations at the date of the institution of such
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proceedings, and for any additional amounts which may become due and payable by
Borrower after such date.
Each remedy herein specifically given shall be in addition to every other right
now or hereafter given or existing at law or in equity, and each and every right
may be exercised from time to time and as often and in such order as may be
deemed expedient by Lender and the exercise or the beginning of the exercise of
one right shall not be deemed a waiver of the right to exercise at the same time
or thereafter any other right. Lender shall have all rights and remedies
available under the law in effect now and/or at the time such rights and
remedies are sought to be enforced, whether or not they are available under the
law in effect on the date hereof.
SECTION 4.3 EXPENSES OF EXERCISING RIGHTS POWERS AND REMEDIES. The
reasonable expenses (including any receiver's fees, attorneys' fees, appraisers'
fees, environmental engineers' and/or consultants' fees, costs incurred for
documentary and expert evidence, stenographers' charges, publication costs,
costs (which may be estimated as to items to be expended after entry of the
decree of foreclosure) of procuring all abstracts of title, continuations of
abstracts of title, title searches and examinations, title insurance policies
and commitments and extensions therefor, Torrens duplicate certificates of
title, UCC and chattel lien searches, and similar data and assurances with
respect to title as Lender may deem reasonably necessary either to prosecute any
foreclosure action or to evidence to bidders at any sale which may be had
pursuant to any foreclosure decree the true condition of the title to or the
value of the Mortgaged Property, and agent's compensation) incurred by Lender
after the occurrence of any Event of Default and/or in pursuing the rights,
powers and remedies contained in this Mortgage shall be immediately due and
payable by Borrower, with interest thereon from the date incurred at the Default
Rate set forth in the Note, and shall be added to the indebtedness secured by
this Mortgage.
SECTION 4.4 RESTORATION OF POSITION. In case Lender shall have proceeded
to enforce any right under this Mortgage by foreclosure, sale, entry or
otherwise, and such proceedings shall have been discontinued or abandoned for
any reason or shall have been determined adversely, then, and in every such
case, Borrower and Lender shall be restored to their former positions and rights
hereunder with respect to the Mortgaged Property subject to the lien hereof.
SECTION 4.5 MARSHALLING. Borrower, for itself and on behalf of all
persons, parties and entities which may claim under Borrower, hereby waives all
requirements of law relating to the marshalling of assets, if any, which would
be applicable in connection with the enforcement by Lender of its remedies for
an Event of Default hereunder, absent this waiver. Lender shall not be required
to sell or realize upon any portion of the Mortgaged Property before selling or
realizing upon any other portion thereof.
SECTION 4.6 WAIVERS. No waiver of any provision hereof shall be implied
from the conduct of the parties. Any such waiver must be in writing and must be
signed by the party against which such waiver is sought to be enforced. The
waiver or release of any breach of the provisions set forth herein to be kept
and performed shall not be a waiver or release of any preceding or subsequent
breach of the same or any other provision. No receipt of partial payment after
acceleration of any of the Obligations shall waive the acceleration. No payment
by
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Borrower or receipt by Lender of a lesser amount than the full amount secured
hereby shall be deemed to be other than on account of the sums due and payable
hereunder, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Lender may accept any check or payment without prejudice to Lender's right to
recover the balance of such sums or to pursue any other remedy provided in this
Mortgage. The consent by Lender to any matter or event requiring such consent
shall not constitute a waiver of the necessity for such consent to any
subsequent matter or event.
SECTION 4.7 LENDER'S RIGHT TO CURE DEFAULTS. If Borrower shall fail to
comply with any of the terms of the Loan Documents with respect to the procuring
of insurance, the payment of taxes, assessments and other charges, the keeping
of the Mortgaged Property in repair, or any other term contained herein or in
any of the other Loan Documents, Lender may make advances to perform the same
without releasing Borrower from any of the Obligations. Borrower agrees to repay
upon demand all sums so advanced and all sums expended by Lender in connection
with such performance, including without limitation attorneys' fees, with
interest at the Default Rate set forth in the Note from the dates such advances
are made, and all sums so advanced and/or expenses incurred, with interest,
shall be secured hereby, but no such advance and/or incurring of expense by
Lender, shall be deemed to relieve Borrower from any default hereunder or under
any of the other Loan Documents, or to release Borrower from any of the
Obligations.
SECTION 4.8 SUITS AND PROCEEDINGS. Lender shall have the power and
authority, upon prior notice to Borrower, to institute and maintain any suits
and proceedings as Lender may deem advisable to (i) prevent any impairment of
the Mortgaged Property by any act which may be unlawful or by any violation of
this Mortgage, (ii) preserve or protect its interest in the Mortgaged Property,
or (iii) restrain the enforcement of or compliance with any legislation or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid, if, in the sole opinion of Lender, the enforcement of or compliance
with such enactment, rule or order might impair the security hereunder or be
prejudicial to Lender's interest.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 BINDING EFFECT; SURVIVAL; NUMBER; GENDER. This Mortgage
shall be binding on and inure to the benefit of the parties hereto, and their
respective heirs, legal representatives, successors and assigns. All agreements,
representations and warranties contained herein or otherwise heretofore made by
Borrower to Lender shall survive the execution, delivery and foreclosure hereof.
The singular of all terms used herein shall include the plural, the plural shall
include the singular, and the use of any gender herein shall include all other
genders, where the context so requires or permits.
SECTION 5.2 SEVERABILITY. The unenforceability or invalidity of any
provision of this Mortgage as to any person or circumstance shall not render
that provision unenforceable or invalid as to any other person or circumstance.
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SECTION 5.3 NOTICES. Any notice or other communication to any party in
connection with this Mortgage shall be in writing and shall be sent by manual
delivery, telegram, telex, facsimile transmission, overnight courier or United
States mail (postage prepaid) addressed to such party at the address specified
below, or at such other address as such party shall have specified to the other
party hereto in writing. All periods of notice shall be measured from the date
of delivery thereof if manually delivered, from the date of sending thereof if
sent by telegram, telex or facsimile transmission, from the first Business Day
(as defined in the Loan Agreement) after the date of sending if sent by
overnight courier, or from four days after the date of mailing if mailed.
Notices shall be given to or made upon the respective parties hereto at their
respective addresses set forth below:
If to Borrower: Avecor Cardiovascular Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, CFO
Telecopy No. (000) 000-0000
If to Lender: First Bank National Association
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn: Jan A. Jasmin
Telecopy No. (000) 000-0000
Either party may change its address for notices by a notice given not less than
five (5) Business Days prior to the effective date of the change.
SECTION 5.4 APPLICABLE LAW. This Mortgage and the other Loan Documents
shall be construed and enforceable in accordance with, and be governed by, the
laws of the State of Minnesota, without giving effect to conflict of laws or
principles thereof, but giving effect to federal laws of the United States
applicable to national banks. Whenever possible, each provision of this Mortgage
and any other statement, instrument or transaction contemplated hereby or
relating hereto, shall be interpreted in such manner as to be effective and
valid under such applicable law, but, if any provision of this Mortgage or any
other statement, instrument or transaction contemplated hereby or relating
hereto shall be held to be prohibited or invalid under such applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Mortgage or any other statement, instrument or
transaction contemplated hereby or relating hereto.
SECTION 5.5 WAIVER OF JURY TRIAL. Borrower and Lender each irrevocably
waives any and all right to trial by jury in any legal proceeding arising out of
or relating to this Mortgage or any of the other Loan Documents or the
transactions contemplated hereby or thereby.
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SECTION 5.6 EFFECT. This Mortgage is in addition and not in substitution
for any other guarantees, covenants, obligations or other rights now or
hereafter held by Lender from any other person or entity in connection with the
Obligations.
SECTION 5.7 ASSIGNABILITY. Lender shall have the right to assign this
Mortgage, in whole or in part, or sell participation interests herein, to any
person obtaining an interest in the Obligations.
SECTION 5.8 HEADINGS. Headings of the Sections of this Mortgage are
inserted for convenience only and shall not be deemed to constitute a part
hereof.
SECTION 5.9 FIXTURE FILING. This instrument shall be deemed to be a
Fixture Filing within the meaning of the Minnesota Uniform Commercial Code, and
for such purpose, the following information is given:
(a) Name and address of Debtor: Avecor Cardiovascular, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Federal Tax I.D. No.: 00-0000000
(b) Name and address of
Secured Party: First Bank National Association
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
(c) Description of the types (or
items) of property covered
by this Fixture Filing: See granting clause on pages 2 and
3 hereof.
(d) Description of real estate
to which the collateral is
attached or upon which it
is or will be located: See Exhibit A hereto.
Some of the above-described collateral is or is to become fixtures upon the
above-described real estate, and this Fixture Filing is to be filed for record
in the public real estate records.
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IN WITNESS WHEREOF, Borrower has executed this Mortgage as of the date
first written above.
AVECOR CARDIOVASCULAR INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
16
STATE OF MINNESOTA)
)ss.
COUNTY OF HENNEPIN)
The foregoing instrument was acknowledged before me this 29th day of January,
1997, by Xxxxxxx X. Xxxxxx, the Chief Financial Officer of Avecor
Cardiovascular, Inc., a Minnesota corporation, on behalf of the corporation.
/s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Notary Public
[SEAL] XXXXXX X. XXXXXXXXX
NOTARY PUBLIC - MINNESOTA
ANOKA COUNTY
My Commission Expires January 31, 2000
EXHIBIT A
LEGAL DESCRIPTION (Granting Clause A)
Xxx 0, Xxxxx 0, Xxxxxxxxx Xxxx Division 4, according to the recorded plat
thereof, and situate in Hennepin County, Minnesota.
PERMITTED ENCUMBRANCES (SECTION 2.1)
1. Real estate taxes not yet due and payable and installments of special
assessments payable therewith.
2. Restrictions, covenants, conditions and easements set forth in Protective
Covenants for Northland Park II dated April 1, 1981, acknowledged August
25, 1992, filed August 26, 1992, as Document No. 5960478.
Above restriction assigned and assumed by Document No. 6337703.
Terms and conditions of that certain Bifurcation and Separation Agreement
Regarding Northland Park II and Creation of Northland Park III regarding
the above Restrictions dated October 12, 1995, filed December 23, 1995, as
Document No. 6517830.
3. Utility and drainage and drainage for ponding easement(s) as shown on the
recorded plat of Northland Park Division 4.
4. Right to construct and maintain temporary snow fences over lands adjacent
to County State Aid Highway No. 18, acquired by the County of Hennepin, as
evidenced by Final Certificate recorded as Document No. 2075297.
5. No right of access exists from premises to County State Aid Xxxxxxx Xx. 00.
Right of access was acquired by the County of Hennepin as evidenced by
Document No. 3755252, except that the abutting owner shall have the right
of access to the frontage road.
6. No right of access exists from premises to County State Aid Xxxxxxx Xx. 00.
Right of access was acquired by the County of Hennepin as evidenced by
Document No. 3840555 except that the abutting owner shall have the right of
access to the frontage road.
7. Easement for drainage purposes over part of premises together with
incidental rights granted to the County of Hennepin, as evidenced by
instrument dated March 30, 1983, filed June 3, 1983, as Document No.
4797904.
8. Assessment Agreement between Xxxx Construction Company of Minnesota, Inc.
and Brooklyn Park E.D.A. dated October 4, 1996, recorded December 13, 1996,
as Document No. 6674367.
9. Individual Development Agreement No. 5 between Xxxx Construction Company of
Minnesota, Inc. and Brooklyn Park E.D.A. dated October 4, 1996, recorded
December 13, 1996 as Document No. 6674366.
EXHIBIT B
(Insurance Requirements)
I. PROPERTY INSURANCE
An ORIGINAL (or certified copy) Special Form Hazard Insurance POLICY naming
Borrower as an insured, reflecting coverage of 100% of the replacement
cost, and written by a carrier approved by Lender with a current Best's
Insurance Guide rating of at least A+ IX (which is authorized to do
business in the State of Minnesota), that includes:
___ Lender's Loss Payable Endorsement with a Severability of Interest
Clause
___ 30-day notice to Lender in the event of cancellation, non-renewal or
material change
___ Replacement Cost Endorsement
___ Stipulated Value/Agreed Amount Endorsement
___ Boiler Explosion Coverage
___ Sprinkler Leakage Coverage
___ Vandalism and Malicious Mischief Coverage
___ Flood Insurance
___ One (1) year's business interruption or rent loss insurance in an
amount acceptable to Lender.
II. LIABILITY INSURANCE
An ORIGINAL CERTIFICATE of General Comprehensive Public Liability Insurance
naming Borrower as an insured, and written by a carrier approved by Lender
with a current Best's Insurance Guide rating of at least A+ IX (which is
authorized to do business in the State of Minnesota), that includes:
___ combined general liability policy limit of at least $2,000,000 each
occurrence, applying to liability for bodily injury, personal injury
and property damage
___ Additional Insured Endorsement naming First Bank National Association
with a Severability of Interest Endorsement
___ 30-day notice to Lender in the event of cancellation, non-renewal or
material change
III. WORKER'S COMPENSATION
An ORIGINAL CERTIFICATE of Worker's Compensation coverage in the statutory
amount, naming Borrower as owner of the Project, written by a carrier
approved by Lender.
