EXHIBIT 10.29
LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT
from
GENERAL MANUFACTURED HOUSING, INC.
to
FIRST SOURCE FINANCIAL LLP
______________________________________
Dated as of December 21, 1995
______________________________________
________________________________________________________________
________________________________________________________________
THIS INSTRUMENT IS TO BE FILED RECORD AND RETURN TO:
AND INDEXED IN THE REAL ESTATE XXXXXX XXXXXX & XXXXX
RECORDS AND IN THE INDEX OF 525 West Monroe
FINANCING STATEMENTS. THIS Suite 1600
INSTRUMENT CONVEYS A SECURITY Xxxxxxx, Xxxxxxxx 00000
INTEREST IN GOODS WHICH ARE OR Attn: Xxxxxxxxx Xxxxxx, Esq.
ARE TO BECOME FIXTURES
THIS LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND
SECURITY AGREEMENT ("Mortgage") is made as of the 21st day, of
December, 1995, by GENERAL MANUFACTURED HOUSING, INC., a Georgia
corporation and successor by merger with GMH Acquisition Corp., a
Delaware corporation, with its principal place of business at
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxx 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 Tower, 5th Floor, Xxxxxxx Xxxxxxx, Xxxxxxxx 00000.
RECITALS:
A. Mortgagor is the Lessee 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 Mortgagor
is the owner or lessee of 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 Notes.
D. One of the conditions precedent to the obligation of
Mortgagee to make the Loans is the execution and delivery by
Mortgagor 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 21, 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, 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.
Encumbrances: all Liens, liabilities, claims, debts,
exceptions, security interests, assessments, levies,
charges, taxes and impositions relating to all or any
portion of the Mortgaged Property.
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 Mortgagor.
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, the Improvements and/or the
Mortgagor Lease (hereinafter defined), (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 Mortgagor's
present and future estate, right, title, and interest in and
to the following:
(a) the leasehold estate(s) created by those
certain lease agreement(s) (as amended "Mortgagor
Lease") described in EXHIBIT A hereto and any and all
rights and options under the Mortgagor Lease, including
but not limited to any option to purchase;
(b) the Premises;
(c) the Improvements;
(d) the Rents;
(e) the Leases;
(f) all Plans;
(g) all Deposits;
(h) all Permits;
(i) all Equipment;
(j) all Construction Contracts;
(k) 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;
(1) all insurance policies in force or effect
insuring the Premises, the Improvements, the Rents, the
Leases or the Equipment;
(m) rights arising out of Mortgagor'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;
(n) all development and use rights with respect
to the Premises, the Improvements and/or the Leases;
(o) 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;
(p) 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 (k) above, or breach of warranty in
connection with the construction of all or any portion
of the Improvements; and
(q) 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) any and all Indebtedness 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 and (ii) the
performance of the covenants of Mortgagor contained in the Credit
Agreement and the Related Documents.
Notes: that certain Revolving Note and that certain Working
Capital Note dated December 20, 1995 by and between Mortgagor and
Mortgagee.
Permits: all permits, certificates, approvals, licenses,
applications and authorizations used in the operation of the
Premises, Improvements and/or the Subleases.
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 B.
Rents: all present and future rents, royalties, issues,
avails, profits and proceeds of or from the Premises, the
Improvements, the Subleases 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 to the Mortgagee the
payment of Mortgagor's Obligations and the Liabilities and the
performance of all covenants and conditions contained in the
Credit Agreement and the Related Documents, and in any renewal,
extension or modification thereof, and to secure, in accordance
with Section 29-3-50, as amended, Code of Laws of South Carolina,
1976, all Future Advances, and for TEN AND NO/100 DOLLARS
($10.00) and other valuable consideration paid to Mortgagor, the
receipt and sufficiency of which are hereby acknowledged,
Mortgagor does hereby grant, bargain, sell, alien, remise,
release, convey, assign, transfer, mortgage, hypothecate, pledge,
deliver, set over, warrant and confirm unto the Mortgagee its
successors and assigns forever, all right, title and interest of
the Mortgagor in and to the Mortgaged Property.
TO HAVE AND TO HOLD the same, together with all privileges,
hereditaments, easements and appurtenances thereto belonging, to
Mortgagee and Mortgagee's successors and assigns to secure the
indebtedness herein recited and should the indebtedness secured
hereby be paid according to the tenor and effect thereof when the
same shall be due and payable and should the Mortgagor timely and
fully discharge its obligations hereunder, then the Mortgaged
Property hereby granted, conveyed and assigned shall cease and be
void, but shall otherwise remain in full force and effect.
2.2 Security Agreement and Fixture Filing. This Mortgage
constitutes a security agreement with respect to the portion of
the Mortgaged Property which consists of personal property and a
financing statement filed as a fixture filing under the Uniform
Commercial Code of the State in which the Premises are located,
covering any property which now is or later may become a fixture
attached to the Premises or the Improvements.
2.3 Absolute Assignment. This Mortgage is a present and
absolute assignment with respect to the Leases and the Rents.
2.4 Interest. Interest due and payable under the Notes may
be deferred, capitalized or accrued.
ARTICLE III
FUTURE ADVANCES; LIMITATION ON AMOUNT SECURED
3.1 Future Advances. This Mortgage is given to secure not
only Mortgagor'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) $26,000,000.00, 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.
THE MAXIMUM PRINCIPAL AMOUNT OF THE INDEBTEDNESS THAT IS OR
MAY UNDER ANY CIRCUMSTANCES BE SECURED UNDER THIS MORTGAGE
IS TWENTY-SIX MILLION AND 00/100 DOLLARS ($26,000,000.00).
3.3 Additional Mortgaged Property. If Mortgagor becomes
the fee owner or holder of any additional rights with respect to
the Premises, this Mortgage automatically shall become a Mortgage
with respect to such interest of Mortgagor in the Premises.
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 mortgage and convey its leasehold interest in the
Premises, (ii) is the holder of a valid and enforceable leasehold
interest in the Premises, as evidenced by the Mortgagor Lease
described on EXHIBIT A, free and clear of all Encumbrances except
Permitted Liens, Permitted Exceptions and (iii) the Mortgagor
Lease is unmodified and in full force and effect and no default
exists thereunder.
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) Encumbrances, (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, Mortgagor 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 Mortgagor's Obligations are paid and performed in.
full, Mortgagor agrees it shall:
5.1 Payment and Performance Under the Mortgagor Lease and
of Mortgagor's Obligations. (i) Promptly pay or perform, or
cause to be paid or performed, when due all payments and
obligations under the Mortgagor Lease, (ii) Promptly pay or
perform or cause to be paid on performed, when due all of
Mortgagor's Obligations, and (iii) fully, timely and faithfully
pay and perform all the terms, provisions, agreements and
covenants contained in the Mortgagor Lease.
5.2 Maintenance of Rights. Maintain the standing, right,
power and lawful authority to do the following: (i) possess the
portion of the Mortgaged Property which constitutes real property
and own good title to the portion of the Mortgaged Property which
constitutes personal 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 Acquisition of Additional Mortgaged Property. If
Mortgagor shall acquire fee title to the Premises, execute and
deliver to Mortgagee, concurrently with and as a condition to
Mortgagor's acquisition of such fee interest, an amendment to
this Mortgage, in form reasonably satisfactory to Mortgagee,
extending the Mortgage Lien as a first lien to such fee interest.
5.4 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.
5.5 Peaceful Possession. Remain in peaceful possession of
the Mortgaged Property and take all actions necessary to maintain
and preserve the Mortgage Lien.
5.6 Payment of Encumbrances. 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
Encumbrance and, immediately upon request by Mortgagee, deliver
to Mortgagee evidence satisfactory to Mortgagee of the payment
and discharge thereof.
5.7 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.
5.8 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.
5.9 Execution of Documents. Immediately upon request by
Mortgagee, at Mortgagor'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.
5.10 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.
5.11 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.
5.12 Stamp Tax; Effect of Change in Laws Regarding Taxation.
5.12.1 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 Notes 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 Notes.
5.12.2 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
Mortgagor, 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 Mortgager, to declare
all of Mortgagor'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 Mortgagor's Obligations are paid and performed in
full, Mortgagor 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 Encumbrances.
6.3.1 Mortgaged Property. Permit any Encumbrances
to exist on the Mortgaged Property except (i) Permitted
Liens and Permitted Exceptions and (ii) Subleases, if any.
6.3.2 Acquisition of Property. Acquire any
Property subject to any Encumbrances, except those
Encumbrances described in subsection 6.3.1 above.
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.
6.6 Mortgagor Lease. Amend, terminate or reject in
bankruptcy the Mortgagor Lease or surrender possession of the
Mortgaged Property, or any portion thereof, without the prior
written consent of Mortgagee.
ARTICLE VII
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 and
Mortgagor hereby assigns any and all such proceeds to Mortgagee.
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 Assignment. As additional security for the Mortgagor's
Obligations, the Mortgagor hereby assigns to Mortgagee all Rents
and all of Mortgagor's rights in and under all Leases. Mortgagor
hereby authorizes and directs the tenants under Leases to pay
Rents to Mortgagee upon written demand by Mortgagee, without
further consent of or notice to Mortgagor.
9.2 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.
9.3 Rent Roll, Copies of Leases. Upon Mortgagee's request,
Mortgagor 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
BANKRUPTCY
(a) The lien of this Mortgage shall attach to all of
Mortgagor's rights and remedies at any time arising under or
pursuant to section 365(h) of the Bankruptcy Code, 11 U.S.C.
365(h), including, without limitation, all rights to remain in
possession of each part of the Premises and to enforce all rights
under the Mortgagor Lease.
(b) Mortgagor, as lessee under the Mortgagor Lease, shall
not, without Mortgagee's prior written consent, elect to treat
the Mortgagor Lease as terminated under Subsection 365(h)(1).
Any such election made without Mortgagee's consent shall be void.
(c) Mortgagor, as lessee under the Mortgagor Lease, hereby
unconditionally assigns, transfers and sets over to Mortgagee all
of Mortgagor's (i) claims and rights to the payment of damages
arising from any rejection of the Mortgagor Lease or any other
fee owner (or a trustee in bankruptcy representing the estate
thereof) of all or any part of the Premises under the Bankruptcy
Code, and (ii) rights to elect to either treat the Mortgagor
Lease as terminated under 365(h)(1)(A)(i) of the Bankruptcy Code
or to retain the right of possession and all other rights under
the Mortgagor Lease under 365(h)(1)(A)(ii) of the Bankruptcy
Code. For the purpose of applying 365(h) of the Bankruptcy Code
and Pursuant to 365(h)(1)(D), Mortgagee shall have all the
rights and powers of the lessee. Mortgagee shall have the right
to proceed in its own name or in the name of Mortgagor in respect
of any claim, suit, action or proceeding relating to the
rejection of the Mortgagor Lease including, without limitation,
the right to file and prosecute, without joining or the joinder
of Mortgagor any proofs of claim, complaints, motions,
applications, notices and other documents, in any case with
respect to the lessee, the lessor or any fee owner of all or any
part of the Premises under the Bankruptcy Code. This assignment
constitutes a present, irrevocable and unconditional assignment
of the foregoing claims, rights and remedies, and shall continue
in effect until all of the Indebtedness secured hereby shall have
been satisfied and discharged in full. Any amounts received by
Mortgagee as damages arising out of the rejection of the
Mortgagor Lease as aforesaid shall be applied first to all costs
and expenses of Mortgagee (including, without limitation,
reasonable attorneys' fees and expenses) incurred in connection
with the exercise of any of its rights or remedies under this
paragraph. Mortgagor shall promptly make, execute, acknowledge
and deliver, in form and substance reasonably satisfactory to
Mortgagee, a UCC Financing Statement (Form UCC-1) and all such
additional instruments, agreements and other documents, as may at
any time hereafter be required by Mortgagee to effectuate and
carry out the assignment pursuant to this paragraph.
(d) If pursuant to Subsection 365(h)(1)(B) of the
Bankruptcy Code, 11 U.S.C. 365(h)(1)(B), Mortgagor shall seek to
offset against the rent reserve in the Mortgagor Lease the amount
of any damages caused by the nonperformance by the lessor or any
fee owner of any of their respective obligations under the
Mortgagor Lease after the rejection by the lessor or any fee
owner of the Lease (or a trustee in bankruptcy representing the
estate thereof) under the Bankruptcy Code, then Mortgagor shall,
prior to effecting such offset, notify Mortgagee of its intent to
do so, setting forth the amount proposed to be so offset and the
basis therefor. Mortgagee shall have the right to object to all
or any part of such offset that, in the reasonable judgment of
Mortgagee, would constitute a breach of the Mortgagor Lease, and
in the event of such objection, Mortgagor shall not effect any
offset of the amounts so objected to by Mortgagee. Neither
Mortgagee's failure to object as aforesaid nor any objection
relating to such offset shall constitute an approval of any such
offset by Mortgagee.
(e) If any action, proceeding, motion or notice shall be
commenced or filed in respect of the lessor under the Mortgagor
Lease or any fee owner of all or any part of the Premises, or any
interest therein, or the Mortgagor Lease in connection with any
case under the Bankruptcy Code, then Mortgagee shall have the
option, exercisable upon notice from Mortgagee to Mortgagor to
conduct and control any such litigation with counsel of
Mortgagee's choice. Mortgagee may proceed in its own name or in
the name of Mortgagor in connection with such litigation, and
Mortgagor agrees to execute any and all powers, authorizations,
consents or other documents required by Mortgagee in connection
therewith. Mortgagor shall, upon demand, pay to Mortgagee all
costs and expenses (including reasonable attorneys' fees and
expenses) paid or incurred by Mortgagee in connection with the
prosecution or conduct of any such proceedings. Mortgagor shall
not commence any action, suit, proceeding or case, or file any
application or make any motion, in respect of the Mortgagor Lease
in any such case under the Bankruptcy Code without the prior
written consent of Mortgagee.
(f) Mortgagor shall, after obtaining knowledge thereof,
promptly notify Mortgagee of any filing by or against lessor or
any fee owner of all or any part of the Premises of a petition
under the Bankruptcy Code. Mortgagor shall promptly deliver to
Mortgagee, following receipt, copies of any and all notices,
summonses, pleadings, applications and other documentation
received by such in connection with any such petition and any
proceedings related thereto.
(g) If there shall be filed by or against Mortgagor a
petition under the Bankruptcy Code and Mortgagor shall determine
to reject such Lease, pursuant to Section 365(a) of the
Bankruptcy Code, then Mortgagor shall give Mortgagee not less
than twenty (20) days' prior notice of the date on which
Mortgagor shall apply to the Bankruptcy Court for authority to
reject the Mortgagor Lease. Mortgagee shall have the right, but
not the obligation, to serve upon Mortgagor within such twenty
(20) day period a notice stating that Mortgagee demands that
Mortgagor assume and assign the Mortgagor Lease to Mortgagee
pursuant to Section 365 of the Bankruptcy Code. If Mortgagee
shall serve upon Mortgagor, as applicable, notice described in
the preceding sentence, Mortgagor shall not seek to reject the
Mortgagor Lease and shall comply with the demand provided for in
the preceding sentence.
(h) Mortgagor hereby assigns and transfers to Mortgagee a
non-exclusive right, which may be exercised upon the entry of an
order for relief under the Bankruptcy Code with respect to
Mortgagor, to apply to the Bankruptcy Court under subsection
365(d)(4) of the Bankruptcy Code for an order extending the
period during which the Mortgagor Lease may be rejected or
assumed.
(i) As used in this paragraph 10, "Bankruptcy Code" means
title 11 of the United States Code as the same may be hereafter
amended. References to 365(h) or any other specific section,
subsection or paragraph of the Bankruptcy Code shall include (1)
such section, subsection, or paragraph as hereinafter re-numbered
by amendment to the Bankruptcy Code, and (2) any other similar
section, subsection, or paragraph as may be hereafter added to
the Bankruptcy Code.
ARTICLE XI
CERTAIN RIGHTS OF MORTGAGEE
11.1 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.
11.2 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) make any payment due
pursuant to the Mortgagor Lease, (ii) keep the Mortgaged Property
in good operating condition and repair, (iii) replace or maintain
the same as herein agreed, (iv) pay the premiums for the
insurance which is required to be maintained hereunder, (v) pay
and discharge all Encumbrances as herein agreed or (vi) 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
Encumbrances 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
Mortgagor'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 XII
DEFAULT AND REMEDIES
(i) Failure of Mortgagor to comply with Section 6.6 above
or (ii) 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 as
described in (i) immediately above or as described in Subsection
13.1.5 or the Credit Agreement, all of Mortgagor's Obligations
immediately shall mature and become due and payable.
If any other Event of Default occurs, Mortgagee may declare
all of Mortgagor's Obligations immediately due and payable,
whereupon Mortgagor'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:
12.1 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:
12.1.1 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.
12.1.2 Leases and Rents. Mortgagee may, with or
without taking possession of the Mortgaged Property, as attorney
and agent-in-fact for Mortgagor constituted and appointed by
Mortgagor with full power of substitution (which power is coupled
with an interest and is irrevocable), in the name of Mortgagor,
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
Subleases 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 Subleases, 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
Subleases that the Subleases have been assigned to
Mortgagee and direct such obligors thereafter to make
all payments due from them under the Subleases directly
to Mortgagee; and
(e) require Mortgagor to direct all obligors of
the Subleases to make all payments due them under the
Subleases directly to Mortgagee.
Notwithstanding anything in this subsection 11.2.2 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 Sublease; (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.
12.1.3 Other Remedies. Mortgagee may exercise any other
rights and remedies then available to Mortgagee under this
Mortgage, the Notes, the Credit Agreement and the other Related
Documents and any applicable laws.
12.2 Foreclosure.
12.2.1 Acceleration of Loans; Foreclosure. Upon the
occurrence of an Event of Default the entire balance of the
Loans, including all accrued interest, shall, at the option of
Mortgagee, become immediately due and payable. Upon failure to
pay the Loans in full at any stated or accelerated maturity,
Mortgagee may foreclose the lien of this Mortgage and take such
other actions as provided by law or in the Credit Agreement and
the Related Documents or by judicial proceeding.
12.2.2 Mortgagee's Power of Enforcement. If an Event of
Default shall have occurred, Mortgagee may, either with or
without entry or taking possession as hereinabove provided or
otherwise, proceed by suit or suits at law or in equity or by any
other appropriate proceeding or remedy: (a) to enforce payment of
the Notes or the performance of any term hereof or any other
right; (b) to foreclose this Mortgage and to sell, as an entirety
or in separate lots or parcels, the Mortgaged Property, under the
judgment or decree of a court or courts of competent
jurisdiction; and (c) to pursue any other remedy available to it.
Mortgagee shall take action either by such proceedings or by the
exercise of its powers with respect to entry or taking
possession, or both, as Mortgagee may determine.
12.2.3 Mortgagee's Right to Enter and Take Possession,
Operate and Apply Income.
(a) If an Event of Default shall have occurred,
Mortgagor, upon demand of Mortgagee, shall forthwith surrender to
Mortgagee the actual possession, and if and to the extent
permitted by law, Mortgagee itself, or by such officers or agents
as it may appoint, may enter and take possession of all the
Mortgaged Property, and may exclude Mortgagor and its agents and
employees wholly therefrom, and may have joint access with
Mortgagor to the books, papers and accounts of Mortgagor.
(b) If Mortgagor shall for any reason fail to surrender
or deliver the Mortgaged Property or any part thereof after
Mortgagee's demand, Mortgagee may obtain a judgment or decree
conferring on Mortgagee the right to immediate possession or
requiring Mortgagor to deliver immediate possession of all or
part of the Mortgaged Property to Mortgagee along with all books,
papers and accounts of Mortgagor, the entry of which judgment or
decree Mortgagor hereby, specifically consents.
(c) Mortgagor shall pay to Mortgagee, upon demand, all
reasonable costs and expenses of obtaining such judgment or
decree and reasonable compensation to Mortgagee, its attorneys
and agents, and all such costs, expenses and compensation shall,
until paid, be secured by the lien of this Mortgage.
(d) Upon every such entering upon or taking of
possession, Mortgagee may hold, store, use, operate, manage and
control the Mortgaged Property and conduct the business thereof,
and, from time to time:
(i) make all necessary and proper maintenance,
repairs, renewals, replacements, additions, betterments and
improvements thereto and thereon and purchase or otherwise
acquire additional fixtures, personalty and other property;
(ii) insure or keep the Mortgaged Property
insured;
(iii) manage and operate the Mortgaged Property and
exercise all the rights and powers of Mortgagor in its name
or otherwise, with respect to the same;
(iv) enter into agreements with others to exercise
the powers herein granted Mortgagee:
all as Mortgagee in its reasonable judgment from time to time may
determine; and Mortgagee may collect and receive all the income,
revenues, rents, issues and profits of the same, including those
past due as well as those accruing thereafter; and shall apply
the monies so received by Mortgagee in such priority as Mortgagee
may determine to (1) the reasonable compensation, expenses and
disbursements of the agents and attorneys; (2) the cost of
insurance, taxes, assessments and other proper charges upon the
Mortgaged Property or any part thereof; (3) the deposits for
taxes and assessments and insurance premiums due; and (4) the
payment of accrued interest on the Notes.
Mortgagee shall surrender possession of the Mortgaged
Property to Mortgagor only when all that is due upon such
interest, tax and insurance deposits and principal installments,
and under any of the terms of this Mortgage, shall have been paid
and all defaults made good. The same right of taking possession,
however, shall exist if any subsequent Event of Default shall
occur and be continuing.
12.2.4 Leases. Mortgagee, at its option, is
authorized to foreclose this Mortgage subject to the rights
of any sub-tenants of the Mortgaged Property, and the
failure to make any such sub-tenants parties defendant to
any such foreclosure proceedings and to foreclose their
rights will not be, nor be asserted by Mortgagor to be, a
defense to any proceedings instituted by Mortgagee to
collect the sums secured hereby or to collect any deficiency
remaining unpaid after the foreclosure sale of the Mortgaged
Property.
12.2.5 Purchase by Mortgagee. Upon any such
foreclosure sale, Mortgagee may bid for and purchase the
Mortgaged Property and, upon compliance with the terms of
sale, may hold, retain and possess and dispose of such
property in its own absolute right without further
accountability.
12.2.6 Application of Indebtedness Toward Purchase
Price. Upon any such foreclosure sale, Mortgagee may, if
permitted by law, after allowing for the proportion of the
total purchase price required to be paid in cash and for the
costs and expenses of the sale, compensation and other
charges, in paying the purchase price apply any portion of
or all sums due to Mortgagee under the Notes, this Mortgage
or any other instrument securing the Notes, in lieu of cash,
to the amount which shall, upon distribution of the net
proceeds of such sale, be payable thereon.
12.2.7 Waiver of Appraisement, Valuation, Stay,
Extension, and Redemption Laws. Mortgagor agrees to the
full extent permitted by law that in case of an Event of
Default on its part hereunder, neither Mortgagor nor anyone
claiming through or under it shall or will set up, claim or
seek to take advantage of any appraisement, valuation, stay,
extension or redemption laws now or hereafter in force, in
order to prevent or hinder the enforcement or foreclosure of
this Mortgage, or the absolute sale of the Mortgaged
Property or the final and absolute putting into possession
thereof, immediately after such sale, of the purchasers
thereat, and Mortgagor, for itself and all who may at any
time claim through or under it, hereby waives, to the full
extent that it may lawfully so do, the benefit of all such
laws, and any and all right to have the assets comprising
the Mortgaged Property marshalled upon any foreclosure of
the lien hereof and agrees that Mortgagee or any court
having jurisdiction to foreclose such lien may sell the
Mortgaged Property in part or as an entirety.
12.2.8 Receiver. If an Event of Default shall have
occurred, Mortgagee, to the extent permitted by law and
without regard lo the value or occupancy of the security,
shall be entitled as a matter of right if it so elects to
the appointment of a receiver to enter upon and take
possession of the Mortgaged Property and to collect all
rents, revenues, issues, income, products and profits
thereof and apply the same as the court may direct. The
receiver shall have all rights and powers permitted under
the laws of the state where the Land is located and such
other powers as the court making such appointment shall
confer. The expenses, including receiver's fees, attorney's
fees, costs and agent's compensation, incurred pursuant to
the powers herein contained shall be secured by this
Mortgage. The right to enter and take possession of and to
manage and operate the Mortgaged Property, and to collect
the rents, issues and profits thereof, whether by a receiver
or otherwise, shall be cumulative to any other right or
remedy hereunder or afforded by law, and may be exercised
concurrently therewith or independently thereof. Mortgagee
shall be liable to account only for such rents, issues and
profits actually received by Mortgagee, whether received
pursuant to this Paragraph or Paragraph 12.2.2.
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 or
deliverable under the terms of this Mortgage to, Mortgagee.
12.2.9 Suits to Protect the Mortgaged Property.
Mortgagee shall have the power and authority to institute
and maintain any suits and proceedings as Mortgagee may deem
advisable (a) to prevent any impairment of the Mortgaged
Property by any acts which may be unlawful or any violation
of this Mortgage, (b) to preserve or protect its interest in
the Mortgaged Property, and (c) to restrain the enforcement
of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or
otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order might impair the security
hereunder or be prejudicial to Mortgagee's interest.
12.2.10 Proofs of Claim. In the case of any
receivership, insolvency, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceedings affecting Mortgagor, any person, partnership or
corporation guaranteeing or endorsing any of Mortgagor's
Obligations, its creditors or its property, Mortgagee, to
the extent permitted by law, shall be entitled to file such
proofs of claim and other documents as may be necessary or
advisable in order to have its claims allowed in such
proceedings for the entire amount due and payable by
Mortgagor under the Notes, this Mortgage and any other
instrument securing the Notes, at the date of the
institution of such proceedings, and for any additional
amounts which may become due and payable by Mortgagor after
such date.
12.2.11 Mortgagor to Pay the Notes on Any Default in
Payment; Application of Monies by Mortgagee.
(a) If default shall be made in the payment of
any amount due under the Notes, this Mortgage or any other
instrument securing the Notes, then, upon Mortgagee's
demand, Mortgagor will pay to Mortgagee the whole amount due
and payable under the Notes and all other sums secured
hereby; and if Mortgagor shall fail to pay the same
forthwith upon such demand, Mortgagee shall be entitled to
xxx for and to recover judgment for the whole amount so due
and unpaid together with costs and expenses including the
reasonable compensation, expenses and disbursements of
Mortgagee's agents and attorneys incurred in connection with
such suit and any appeal in connection therewith, Mortgagee
shall be entitled to xxx 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.
(b) In case of a foreclosure sale of all or any
part of the Mortgaged 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.
(c) Mortgagor hereby agrees, to the extent
permitted by law, that no recovery of any such judgment by
Mortgagee and no attachment or levy of any execution upon
any of the Mortgaged Property or any other property shall in
any way affect the lien of this Mortgage upon the Mortgaged
Property or any part thereof or any lien, rights, powers or
remedies of Mortgagee, hereunder, but such lien, rights,
powers and remedies shall continue unimpaired as before.
(d) Any monies collected or received by Mortgagee
under this Paragraph 12.2.11 shall be applied as follows:
(i) First, to the payment of reasonable
compensation, expenses and disbursements of the
agents and attorneys; and
(ii) Second, to payment of amounts due and unpaid
under the Notes, this Mortgage and all other
instruments securing the Notes.
12.2.12 Delay or Omission No Waiver. No delay or
omission of Mortgagee or of any holder of the Notes to
exercise any right, power or remedy accruing upon any Event
of Default shall exhaust or impair any such right, power or
remedy or shall be construed to waive any such Event of
Default or to constitute acquiescence therein. Every right,
power and remedy given to Mortgagee may be exercised from
time to time and as often as may be deemed expedient by
Mortgagee.
12.2.13 No Waiver of One Default to Affect Another.
No waiver of any Event of Default hereunder shall extend to
or affect any subsequent 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 Notes, this Mortgage
or any other instrument securing the Notes; (d) releases any
part of the Mortgaged Property from the lien of this Mortgage or any
other instrument securing the Notes; (e) consents to the
filing of any map, plat or replat of the Mortgaged Property;
(f) consents to the granting of any easement on the
Mortgaged Property; or (g) 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 Notes, this Mortgage or
otherwise of Mortgagor, or any subsequent purchaser of the
Mortgaged Property or any part thereof or any maker,
cosigner, endorser, surety or guarantor. 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 this Mortgage be altered
thereby. In the event of the sale or transfer by operation
of law or otherwise of all or any part of the Mortgaged
Property, Mortgagee, without notice to any person, firm or
corporation, is hereby authorized and empowered to deal with
any such vendee or transferee with reference to the
Mortgaged Property or the indebtedness secured hereby, or
with reference to any of the terms or conditions hereof, as
fully and to the same extent as it might deal with the
original parties hereto and without in any way releasing or
discharging any of the liabilities or undertakings
hereunder.
12.2.14 Discontinuance of Proceedings; Position of
Parties Restored. If Mortgagee shall have proceeded to
enforce any right or remedy 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 and in
every such case Mortgagor and Mortgagee shall be restored to
their former positions and rights hereunder, and all rights,
powers and remedies of Mortgagee shall continue as if no
such proceeding had occurred or had been taken.
12.2.15 Remedies Cumulative. No right, power or
remedy conferred upon or reserved to Mortgagee by the Notes,
this Mortgage or any other instrument securing the Notes is
exclusive of any other right, power or remedy, but each and
every such right, power and remedy shall be cumulative and
concurrent and shall be in addition to any other right,
power and remedy given hereunder or under the Notes or any
other instrument securing the Notes, or now or hereafter
existing at law, in equity or by statute.
12.2.16 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 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, Mortgagor agrees that 10 days
notice of the sale of the Collateral shall be reasonable
notice.
12.2.17 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
Mortgagor's Obligations or to the judgment of foreclosure,
as described more fully in Section 12.2.11.
12.31 Deficiency.
12.3.1 Sale and Foreclosure. If the Mortgaged
Property (or any part thereof which remains subject to this
Mortgage) is sold pursuant to foreclosure proceedings, 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
12.3.2 hereinafter collectively referred to as the "Balance
Owed"), then the Indebtedness evidenced by the Notes 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 Notes 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 foreclosure
sale (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.
12.3.2 Foreclosure of Other Credit Agreement and the
Related Documents. Notwithstanding the provisions of
subsection 12.3.1, Mortgagor further agrees that if any
other portion of the Collateral is foreclosed judicially and
such Collateral is sold pursuant to foreclosure proceedings,
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 Mortgagor'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 Notes 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 foreclosure
sale.
ARTICLE XIII
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 XIV
MISCELLANEOUS
14.1 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 as 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.
14.2 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.
14.3 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.
14.4 JURISDICTION AND VENUE. SUBJECT TO THE PROVISIONS OF
ANY APPLICABLE STATUTE IN THE STATE WHERE THE PREMISES ARE
LOCATED, MORTGAGOR 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, MORTGAGOR HEREBY 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. MORTGAGOR 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.
14.5 WAIVER OF JURY TRIAL. 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.
14.6 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.
14.7 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.
14.8 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.
14.9 Subrogation. To the extent that any of Mortgagor's
Obligations represent funds utilized to satisfy any outstanding
Indebtedness secured by Encumbrances 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
Encumbrances 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.
14.10 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.
14.11 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.
14.12 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.
14.13 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
equity, 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.
14.14 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 Notes, 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 Notes, 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 Mortgagor 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 Mortgagor and Mortgagee.
14.15 No Waiver by Mortgagee. Any failure of Mortgagee to
insist upon the strict performance by Mortgagor 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
Mortgagor of any and all of the terms and provisions hereof.
14.16 No Release. Except as may be provided otherwise by
applicable law, neither Mortgagor, 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 Notes, 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 Notes, 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.
14.17 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.
14.18 Notes Equally Secured. The Notes secured hereby are
equally secured without preference of one over the other by
reason of priority of maturity, negotiation or otherwise.
14.19 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
Mortgage, 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/[illegible] By: /s/ Xxxx X. Xxxxx
Witness #1 Name: Xxxx X. Xxxxx
Title: President
/s/[illegible]
Witness #2 [CORPORATE SEAL]
MORTGAGEE:
Signed, Sealed and FIRST SOURCE FINANCIAL LLP,
delivered in the presence of an Illinois Registered Limited
Liability Partnership
/s/[illegible] By: First Source Financial, Inc.
Witness #1 Its Agent Manager
By: /s/ [illegible]
Name: [illegible]
Title: [illegible]
/s/[illegible]
Witness #2 [CORPORATE SEAL]
STATE OF NEW YORK )
) PROBATE
COUNTY OF NEW YORK)
PERSONALLY appeared before me the undersigned witness and
made oath that (s)he saw the within-named GENERAL MANUFACTURED
HOUSING, INC., a Georgia corporation by Xxxx X. Xxxxx its
President sign, seal, and as its act and deed, deliver the
within-written instrument for the uses and purposes therein
mentioned, and that (s)he with the other witness whose signature
appears above, witnessed the execution thereof.
/s/ [illegible]
WITNESS #1
SWORN TO before me this
21st day of December, 1995
/s/ Xxxxx X. Xxxxxxxx
Notary Public for _____________ STAMPED
My Commission Expires: August 31, 0000
XXXXX XX XXX XXXX )
) PROBATE
COUNTY OF NEW YORK )
PERSONALLY appeared before me the undersigned witness
and made oath that (s)he saw the within-named First Source
Financial LLP, an Illinois Registered Limited Liability
Partnership, by First South Financial, Inc., its Agent/Manager,
by [illegible], its Vice President sign, seal, and as its act
and deed, deliver the within-written instrument for the uses and
purposes therein mentioned, and that (s)he with the other witness
whose signature appears above, witnessed the execution thereof.
/s/ [illegible]
WITNESS #1
SWORN TO before me this
21st day of December, 1995
/s/ Xxxxx X. Xxxxxxxx
Notary Public for _____________ STAMPED
My Commission Expires: August 31, 1996
EXHIBIT A
DESCRIPTION OF LEASE
Lease Agreement with Option to Purchase, as amended, dated
July 10, 1995 by and between X.X. Xxxx and Xxxxx Xxxxx, each
individually and doing business as Xxxxx Warehouse Co., as
Lessors, and Xxxxx Housing, L.L.C., as Lessee.
EXHIBIT B
TRACT ONE: All that certain piece, parcel or tract of land,
together with the buildings and improvements thereon, lying,
being and situate in the Town of Xxxxx, County of Darlington,
State of South Carolina. Said tract being designated as Tract #1
on a plat hereinafter referred to, according to which said tract
contains 4.253 acres, more or less, and is bounded and measures
as follows on the northwest by the right-of-way of Railroad
Avenue and by lands now or formerly of X. X. Xxxxxxx and Company
and measured thereon 100 feet, more or less; on the southeast by
the old Seaboard Coast Line Railroad right-of-way, by the XxXxxxx
Subdivision, by and lands of the Estate of X. X. Xxxxxxxx and of
Xxxxxx Xxxx, and measuring thereon 1,852.95 feet; on the
Southwest by lands now or formerly of X. X. Xxxxxxx and Company
measuring thereon 100 feet, more or less. SUBJECT HOWEVER, to
existing rights-of-way across the aforesaid property, including
the right-of-way of Railroad Avenue as shown on said plat.
TRACT TWO: All that certain piece, parcel or lot of land,
situate, lying and being in the County of Darlington, State of
South Carolina, being shown and designated as Tract No. Two (2)
on that certain plat prepared by Xxxx Surveying Co., dated
October 7, 1972, and recorded in the Office of the Clerk of Court
for Darlington County in Plat Book 59, Page 99. Said tract being
triangular in shape and containing 1.034 acres, as shown on said
plat; and being bounded, now or formerly, as follows: On the
north or northwest by a canal separating it from property now or
formerly of Xxxxxx X. Xxxxxx, a distance of 526.94 feet; on the
east by property now or formerly of E. H. Segrs & Company, a
distance of 182.25 feet, and on the south by Railroad Avenue, on
which it fronts and measures 494.42 feet. Be all measurements a
little more or less, and being the same property conveyed by deed
dated June 26, 1984, and recorded in the Office of the Clerk of
Court for Darlington County in Deed Book 873 at Page 697 on
June 27, 1984.
TRACT THREE: All that certain piece, parcel or lot of land,
situate, lying and being in the Town of Xxxxx, State of South
Carolina, and shown on that certain plat prepared for
X. X. Xxxxxx by M. E. Xxxx, Jr., Registered Surveyor, dated
February 6, 1980, and recorded in Plat Book _____, Page _____;
this property is bounded and measures as follows, to wit: On the
northwest by property now or formerly of Xxxxxxx Xxxxx Xxxxxx for
a distance of 254.09 feet, the boundary between the properties
being the center of a ditch running thereon; on the northeast by
property now or formerly of R. E. Xxxxxxxx for a distance of
299.02 feet; on the southeast by Railroad Avenue on which it
fronts and measures 241.61 feet; and on the southwest by property
of Xxxxx Xxxxx for a distance of 182.25 feet; all measurements a
little more or less.
This is the same property conveyed to Xxxxx Builders, Inc. by
deed of Southern Bank and Trust Company dated February 28, 1985,
and recorded in the Office of the Clerk of Court for Darlington
County in Deed Book 891 at Page 668 on May 3, 1985.
TRACT FOUR: All that certain piece, parcel or tract of land
lying, being and situate in the Town of Xxxxx, County of
Darlington, State of South Carolina. Said tract being designated
as Tract #4 contains 4.5 acres, more or less, and is bounded and
measures as follows: On the northwest by the right of way to
Railroad Avenue and measuring 1,956 feet, more or less; on the
northeast by Tract #1 on said plat and measuring thereon
100 feet; on the southeast by lands of Xxxxxx Xxxx and measuring
thereon 1,956 feet, more or less; on the southwest by a State
Road (S-16-975) and measuring 100 feet.
For a more particular description of said tract, reference may be
had to a plat by the Xxxx Surveying Company dated October 7,
1972, and revised February 11, 1982, to show the above tract #4
and recorded in the Office of the Clerk of Court of Darlington
County in Plat Book 89 at Page 231.
Said properties having been conveyed to Xxxxx Builders, Inc. by
deed of X. X. Xxxxxxx dated February 14, 1982, and recorded in
the Office of the Clerk of Court of Darlington County in Plat
Book 837 at Page 145.
TRACT FIVE: All that certain piece, parcel or lot of land,
situate, lying and being in the County of Darlington, State of
South Carolina, being shown on that certain plat prepared for
X. X. Xxxxxx by Xxxx Surveying Co., Registered Surveyor, dated
October 7, 1972, and recorded in the Office of the Clerk of Court
for Darlington County in Plat Book 89 at Page 231. This property
lies at the fork of two public roads; e.g. Railroad Avenue and
XxXxxx Street which roads comprise the North, East and South
boundaries; on the West by property now or formerly of
X. X. Xxxxxx measuring 100 feet along a bearing of S 320 degrees
40' East. Said tract being irregular in shape and comprising
.230 acres together with the buildings and improvements thereon
lying.
