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) MORTGAGE, ASSIGNMENT AND SECURITY AGREEMENT
COUNTY OF BEAUFORT )
THIS MORTGAGE, ASSIGNMENT, AND SECURITY AGREEMENT made and delivered
this 31st day of October, 1996, by Carolina Center Building Corp.
("Mortgagor"), whose address is Post Xxxxxx Xxx 0000, Xxxxxx Xxxx Xxxxxx, Xxxxx
Xxxxxxxx 00000 and Sea Pines Company, Inc. ("Mortgagee"), whose address is Xxxx
Xxxxxx Xxx 0000, Xxxxxx Xxxx Xxxxxx, Xxxxx Xxxxxxxx 00000.
W I T N E S S E T H
WHEREAS, Mortgagor is indebted to Mortgagee in the principal sum of
One Million Five Hundred Thousand and No/100 ($1,500,000) Dollars, together
with interest thereon, as evidenced by a Promissory Note (hereinafter referred
to as the "Note"), dated October 31 , 1996, which document by reference is made
a part hereof to the same extent as though set out in full herein;
NOW, THEREFORE, to secure the performance and observance by Mortgagor
of all covenants and conditions contained in the Note, in any renewal,
extension or modification thereof, in this Mortgage, Assignment, and Security
Agreement and in all other instruments securing the Note. Mortgagor does
hereby grant, bargain, sell, alien, remise, release, convey, assign, transfer,
mortgage, hypothecate, pledge, deliver, set over, warrant and confirm unto
Mortgagee, its successors and assigns forever all right, title and interest of
Mortgagor, by way of mortgage lien, in and to that certain property described
below:
(A) THE LAND. All the land located in the County of Beaufort, State
of South Carolina (the "Land"), described in Exhibit "1" attached hereto and
made a part hereof;
(B) THE IMPROVEMENTS. TOGETHER WITH all buildings, structures and
improvements of every nature whatsoever now or hereafter situated in or on the
Land, and all fixtures, machinery, appliances, equipment, furniture, and
personal property of every nature whatsoever now or hereafter owned by
Mortgagor and located in or on, or attached to, or used or intended to be used
in connection with or with the operation of, the Land, buildings, structures or
other improvements, including all extensions, additions, improvements,
betterments, renewals and replacements to any of the foregoing and all of the
right, title and interest of Mortgagor in and to any such personal property or
fixtures subject to any lien, security interest or claim together with the
benefit of any deposits or payments now or hereafter made by Mortgagor or on
its behalf (the "Improvements").
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(C) EASEMENTS OR OTHER INTERESTS. TOGETHER WITH all easements,
rights of way, gores of land, streets, ways, alleys, passages, sewer rights,
waters, water courses, water rights and powers, and all estates, rights,
titles, interests, privileges, liberties, tenements, hereditament and
appurtenances whatsoever, in any way belonging, relating or appertaining to any
of the property hereinabove described, or which hereafter shall in any way
belonging, relate or be appurtenant thereto, whether now owned or hereafter
acquired by Mortgagor, and the reversion and reversions, remainder and
remainders, rents, issues and profits thereof, and all the estate, right,
title, interest, property, possession, claim and demand whatsoever, at law as
well as in equity, of Mortgagor of, in and to the same, including but not
limited to all judgments, awards of damages and settlements hereafter made
resulting from condemnation proceedings or the taking of the property described
in paragraphs (A), (B) and (C) hereof or any part thereof under the power of
eminent domain, or for any damage (whether caused by such taking or otherwise)
to the property described in paragraphs (A), (B) and (C) hereof or any part
thereof, or to any rights appurtenant thereto, all sales contracts for, and all
proceeds of any sales or other dispositions of, the property described in
paragraphs (A) , (B) and (C) hereof or any part thereof, and all construction
contracts involving the development of, or improvements in or on the property
described in paragraphs (A), (B) and (C) hereof or any part thereof.
(D) ASSIGNMENT OF RENTS. TOGETHER WITH all rents, royalties, issues
profits, revenue, income and other benefits from the property described in
paragraphs (A) , (B) and (C) hereof to be applied against the indebtedness and
other sums secured hereby, provided, however, that permission is hereby given
to Mortgagor so long as no default has occurred hereunder, to collect, receive,
take, use and enjoy such rents, royalties, issues, profits, revenue, income and
other benefits as they become due and payable, but not in advance thereof. The
foregoing assignment shall be fully operative without any further action on the
part of either party and specifically Mortgagee shall be entitled, at its
option upon the occurrence of a default hereunder, to all rents, royalties,
issues, profits, revenue, income and other benefits from the property described
in paragraphs (A), (B) and (C) hereof whether or not Mortgagee takes possession
of the property described in paragraphs (A), (B) and (C) hereof.
Upon any such default hereunder, the permission hereby given to
Mortgagor to collect such rents, royalties, issues, profits, revenue, income
and other benefits from the property described in paragraphs (A), (B) and (C)
hereof shall terminate and such permissions shall not be reinstated upon a cure
of the default without Mortgagee's specific consent, unless the default has
been timely cured under the terms hereof. Neither the exercise of any rights
under this paragraph by Mortgagee nor the application of any such rents,
royalties, issues, profits, revenue, income or other benefits to the
indebtedness and other sums secured hereby, shall cure or waive any default or
notice of default hereunder or invalidate any act done pursuant hereto or to
any such notice, but shall be cumulative of all other rights and remedies.
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(E) ASSIGNMENT OF LEASES. TOGETHER WITH all right, title and
interest of Mortgagor in and to any and all leases now or hereafter on or
affecting the property described in paragraphs (A), (B) and (C) hereof,
together with all security therefor and all monies payable thereunder, subject,
however, to the conditional permission hereinabove given to Mortgagor to
collect the rentals under any such lease and to carry out the rights and
responsibilities of Landlord under such leases, so long as Mortgagor is not in
default hereunder. The foregoing assignment of any lease shall not be deemed
to impose upon Mortgagee any of the obligations or duties of Mortgagor provided
in any such lease, and Mortgagor agrees to fully perform all obligations of the
lessor under all such leases. Upon Mortgagee's request, Mortgagor agrees to
send to Mortgagee a list of all leases affecting the property described in
paragraphs (A), (B) and (C) hereof. Mortgagee shall have the right, at any
time and from time to time, to notify any lessee of the rights of Mortgagee as
provided by this paragraph. From time to time, upon request of Mortgagee,
Mortgagor shall specifically assign to Mortgagee as additional security
hereunder, by an instrument in writing in such form as may be approved by
Mortgagee, all right, title and interest of Mortgagor in and to any and all
leases now or hereafter on or affecting the Mortgaged Property, together with
all security therefor and all monies payable thereunder, subject to the
conditional permission hereinabove given to Mortgagor to collect the rentals
under any such lease and to carry out the rights and responsibilities of
Landlord, so long as Mortgagor is not in default hereunder.
This instrument constitutes an absolute and present assignment of the
rents, royalties, issues, profits, revenue, income and other benefits from the
Mortgaged Property, subject, however, to the conditional permission given to
Mortgagor to collect, receive, take, use and enjoy the same as provided
hereinabove; provided, further, that the evidence or exercise of such right or
Mortgagor shall not operate to subordinate this assignment to any subsequent
assignment, in whole or in part, by Mortgagor, and any such subsequent
assignment by Mortgagor shall be subject to the rights of Mortgagee hereunder.
(F) PERSONAL PROPERTY - Everything referred to in paragraphs (A),
(B), (C), (D), and (E), hereof and any additional property hereafter acquired
by Mortgagor and subject to the lien of this Mortgage or intended to be so is
herein referred to as the "Mortgaged Property."
TO HAVE AND TO HOLD the Mortgaged Property and all parts thereof unto
Mortgagee, its successors and assigns, to its own proper use and benefit
forever, subject, however, to the terms and conditions herein:
PROVIDED, HOWEVER, that if Mortgagor shall promptly pay or cause to be
paid to Mortgagee the principal and interest payable under the Note at the
times and in the manner stipulated therein, herein, and in all other
instruments securing the Note, all without any deduction or credit for taxes or
other similar charges paid by Mortgagor, and in this Mortgage and in all other
instruments securing the Note, to be kept, performed or observed by Mortgagor,
then this Mortgage, and all the
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properties, interest and rights hereby granted, conveyed and assigned shall
cease and be void, but shall otherwise remain in full force and effect.
Mortgagor covenants and agrees with Mortgagee as follows:
ARTICLE ONE
COVENANTS OF MORTGAGOR
1.01 Performance of Note, Mortgage, etc. Mortgagor shall perform,
observe and comply with all provisions hereof, of the Note (insofar as its
compliance is required) of every other instrument securing the Note, and will
promptly pay to Mortgagee the principal with interest thereon and all other
sums required to be paid by. Mortgagor under the Note and pursuant to the
provisions of this Mortgage and of every other instrument securing the Note
when payment shall become due, all without deduction or credit for taxes or
other similar charges paid by Mortgagor.
1.02 Restrictive Covenants, Zoning and Environmental Laws.
Mortgagor covenants and warrants to comply with all restrictive covenants,
environmental and ecological laws, ordinances and regulations affecting the
Mortgaged Property from the date of closing forward (specifically excluding the
items noted in the October 23, 1996 inspection by Xxxxxx Consulting consisting
of three pages). Mortgagee agrees that for a default to arise under this
provision allowing for Mortgagee to exercise any of its legal remedies under
this Mortgage, said breach must be material and adversely impact the
Mortgagee's collateral or the Mortgagor's ability to repay the underlying debt.
1.03 Taxes and Liens.
(a) Mortgagor shall pay or bond promptly, when and as due, and shall
promptly exhibit to Mortgagee receipts for the payment of all taxes,
assessments, rates, dues, charges, fees, levies, fines, impositions,
liabilities, obligations and encumbrances of every kind whatsoever (including
those encumbrances, if any, permitted pursuant to Paragraph 1.03) now or
hereafter proposed, levied or assessed upon or against the Mortgaged Property
or any part thereof, or upon or against this Mortgage or the indebtedness or
other sums secured hereby, or upon or against the interest of Mortgagee in the
Mortgaged Property, as well as all income taxes, assessments and other
governmental charges levied and imposed by the United States of America or any
state, county, municipality, borough or other taxing authority upon or against
Mortgagor or in respect of the Mortgaged Property or any part thereof, and any
charge which, if unpaid, would become a lien or charge upon the Mortgaged
Property before they become delinquent and before any interest attaches or any
penalty is incurred.
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(b) Mortgagor shall not permit or suffer more than ten (10) days any
mechanics', laborers', materialmen's, statutory or other lien upon any or the
Mortgaged Property.
1.04 Insurance.
(a) Mortgagor shall at its sole expense obtain for, deliver to and
maintain for the benefit of Mortgagee, during the life of this Mortgage,
insurance policies in such amounts as Mortgagee may require in no event less
than the full insurable value or the loan amount, insuring the Mortgaged
Property against fire, extended coverage and such other insurable hazards,
casualties and contingencies as Mortgagee may require including flood damage,
and shall pay promptly, when due, any premiums on such insurance policies and
on any renewals thereof. The form of such policies and the companies issuing
them, and the coverage provided shall be acceptable to Mortgagee. All such
policies and renewals thereof shall be held by Mortgagee and shall contain a
noncontributory mortgagee endorsement making losses payable to Mortgagee. The
coverage under such policies shall be limited to the improvements now or
hereafter located on the Mortgaged Property. At least fifteen (15) days prior
to the expiration date of all such policies, renewals thereof satisfactory to
Mortgagee shall be delivered to Mortgagee. Mortgagor shall deliver to
Mortgagee receipts evidencing the payment of all premiums on such insurance
policies and renewals. Delivery of the insurance policies and renewals thereof
shall constitute an assignment to Mortgagee, as further security, of all
unearned premiums. In the event of loss, Mortgagor will give immediate written
notice to Mortgagee and Mortgagee may make proof of loss if not made promptly
by Mortgagor. In the event of the foreclosure of this Mortgage or any other
transfer of title to the Mortgaged Property in extinguishment of the
indebtedness and other sums secured hereby, all right, title and interest of
Mortgagor in and to all insurance policies and renewals thereof then in force
shall pass to the purchaser or grantee. Mortgagee may at any time at its own
discretion procure and substitute for any and all of the insurance so held as
aforesaid, such other policy or policies of insurance, in like amount, as it
may determine without prejudice to its right to foreclose hereunder should
Mortgagor fail or refuse to keep said premises so insured.
(b) Mortgagor hereby assigns to Mortgagee all proceeds from any
insurance policies, and Mortgagee is hereby authorized and empowered in its
reasonable discretion, to adjust or compromise any loss under any insurance
from any such policy or policies, to the extent necessary to secure payment
hereunder.
(c) Mortgagor shall at its sole expense obtain for, deliver to and
maintain for the benefit of Mortgagee, during the life of this Mortgage,
liability insurance policies relating to the Mortgaged Property, in such
amounts, with such companies and in such form as may be reasonably required by
Mortgagee. Mortgagee may require such policies to contain an endorsement, in
form satisfactory to Mortgagee, naming Mortgagee as
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an additional insured thereunder. Mortgagor shall pay promptly, when due, any
premiums on such insurance policies and renewals thereof.
1.05 Care of Property.
(a) Mortgagor shall preserve and maintain the Mortgaged Property in
good condition and repair. Mortgagor shall not permit, commit or suffer any
waste, impairment or deterioration of the Mortgaged Property or of any part
thereof, and will not take any action which will increase the risk of fire or
other hazard to the Mortgaged Property or to any part thereof.
(b) Except as otherwise provided in this Mortgage, no fixture,
personal property or other part of the Mortgaged Property shall be removed,
demolished or altered, without the prior written consent of Mortgagee, if such
action would materially impair the value of the security hereby provided.
Mortgagor may sell or otherwise dispose of, free from the lien of this
Mortgage, furniture, furnishings, equipment, tools, appliances, machinery,
fixtures or appurtenances, subject to the lien hereof, which may become worn
out, undesirable or obsolete only if they are replaced immediately with similar
items of at least equal value which shall, without further action, become
subject to' the lien of this Mortgage, except as otherwise provided in this
Mortgage.
(c) Mortgagee may enter upon and inspect the Mortgaged Property at
any reasonable time during the term of this Mortgage, upon at least twenty-four
(24) hours advance notice to Mortgagor.
(d) If all or any part of the Mortgaged Property shall be lost,
damaged or destroyed by fire or any other cause, Mortgagor will give immediate
written notice thereof to Mortgagee and shall promptly restore the Mortgaged
Property to the equivalent of its original condition regardless of whether or
not there shall be any insurance proceeds therefor. If a part of the Mortgaged
Property shall be lost, physically damaged or destroyed through condemnation,
Mortgagor will promptly restore, repair or alter the remaining property in a
manner satisfactory to Mortgagee.
1.06 Transfer of Property.
If all or any part of the Property or an interest therein is
sold or transferred by Borrower without Lender's prior written consent
excluding the creation of a lien or encumbrance subordinate to this Mortgage,
Lender may, at Lender's option, declare all the sums secured by this Mortgage
to be immediately due and payable. Lender shall have waived such option to
accelerate if, prior to the sale or transfer, Lender and the person to whom the
Property is to be sold or transferred reach agreement in writing that the
credit of such person is satisfactory to Lender and that the interest payable
on the sums secured by this Mortgage shall be at such rate as Lender shall
request. if
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Lender has waived the option to accelerate provided in this paragraph, and if
Borrower's successor in interest has executed a written assumption accepted in
writing by Lender, Lender shall release Borrower from all obligations under
this Mortgage and the Note. Lender's decision on the assumption of said
obligation shall be at its sole discretion. Lender can deny said assumption
for a good reason, or no reason at all.
If Lender exercises such option to accelerate, Lender shall mail
Borrower notice of acceleration. Such notice shall provide a period of not
less than thirty (30) days from the date the notice is mailed within which
Borrower may pay the sums declared due. If Borrower fails to pay such sums
prior to the expiration of such period, Lender may, without further notice or
demand on Borrower, invoke any remedies permitted hereunder.
1.07 Further Assurances. At any time and from time to time, upon
Mortgagee's request Mortgagor shall make, execute and deliver or cause to be
made, executed and delivered to Mortgagee and, where appropriate, shall cause
to be recorded or filed and from time to time thereafter to be rerecorded or
refiled at such time and in such offices and places as shall be deemed
desirable by Mortgagee any and all such further mortgages, instruments of
further assurance and other documents and Mortgagee may consider necessary or
desirable in order to effectuate, complete, or perfect, or to continue and
preserve the obligations of Mortgagor under the Note and this Mortgage, and the
lien of the Mortgage as a first and prior lien upon all of the Mortgaged
Property.
1.08 Leases Affecting Mortgaged Property. Mortgagor shall comply
with and observe its obligations as landlord under all leases affecting the
Mortgaged Property or any part thereof. Mortgagor, if required by Mortgagee,
shall furnish promptly to Mortgagee, executed copies of all such leases now
existing or hereafter created. Mortgagor shall not, without the express
written consent of Mortgagee, modify, surrender, terminate or extend any such
lease now existing or hereafter created or permit or suffer an assignment of
sublease. Mortgagor shall not accept permit payment of rent more than one (1)
month in advance without the prior written consent of Mortgagee.
1.09 Expenses. Mortgagor shall pay or reimburse Mortgagee for all
costs, charges and expenses, including reasonable attorney's fees and
disbursements, and costs incurred or paid by Mortgagee in any action which is
threatened, pending or completed or proceeding or dispute in which Mortgagee is
or might be made a party or appears as a party plaintiff or party defendant and
which affects or might affect the Note, or the Mortgaged Property or any part
thereof, or the interests of Mortgagor or Mortgagee therein, including but not
limited to the foreclosure of this Mortgage, condemnation involving all or part
of the Mortgaged Property or any action to protect the security hereof, to the
extent that such action may be the result of Mortgagor's default hereunder.
The amounts so incurred or paid by Mortgagee, together with interest thereon at
the Default Rate as hereinafter defined from the
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date incurred until paid by Mortgagor, shall be added to the indebtedness and
secured by the lien of this Mortgage.
1.10 Mortgagor's Performance of Defaults. If Mortgagor defaults in
the payment of any tax, assessment, encumbrance of other imposition, in its
obligation to furnish insurance hereunder or in the performance of observance
of any other covenant, conditions or term in this Mortgage or in any other
instrument securing the Note or in any other mortgage or security agreement
conveying an interest in the Mortgaged Property or any part thereof, Mortgagee
may at its option perform or observe the same, and all payments made (whether
such payments are regular or accelerated payments) and costs and expenses
incurred or paid by Mortgagee in connection therewith shall become due and
payable immediately by Mortgagor. The amounts so incurred or paid by
Mortgagee, together with interest thereon at the Default Rate as hereinafter
defined from the date incurred until paid by Mortgagor, shall be added to the
indebtedness and secured by the lien of this Mortgage. Nothing contained
herein shall be construed as requiring Mortgagee to advance or expend monies
for any purposes mentioned in this paragraph, or for any other purpose.
Mortgagee is hereby empowered to enter and to authorize others to enter upon
the Mortgaged Property or any part thereof for the purpose of performing or
observing any such defaulted covenant, condition or terms, without thereby
becoming liable to Mortgagor or any person in possession holding under the
Mortgagor.
1.11 Estoppel Affidavits. Mortgagor, within ten (10) days after
written request from Mortgagee, shall furnish a written statement, duly
acknowledged, setting forth the unpaid principal of, and interest on, the Note,
and any other unpaid sums secured hereby, and whether or not any offsets of
defenses exist against such principal and interest or other sums.
ARTICLE TWO
DEFAULTS
2.01 Event of Default. The term Event of Default, wherever used in
this Mortgage, shall mean any one or more of the following events:
(a) Failure by Mortgagor to duly keep, perform and observe any
covenant, condition or agreement in the Note, this Mortgage and Security
Agreement, which failure is not cured following thirty (30) days written notice
to Mortgagor, stating the failure or default and the action necessary to cure.
(b) A breach by Mortgagor of any of the covenants, agreements and
conditions of this Mortgage and Security Agreement.
(c) If Mortgagor: (a) (i) files a voluntary petition in
bankruptcy, or (ii) is adjudicated as a bankrupt or insolvent, or (iii) files
any petition or answer seeking or acquiescing in any reorganization,
management, composition, readjustment, liquidation, dissolution or
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similar relief for itself under any law relating to bankruptcy
insolvency or other relief for 'debtors, or (iv) seeks or consents to or
acquiesces in the appointment of any trustee, receiver, master or liquidator of
itself or of all or any substantial part of the Mortgaged Property or of any or
all of the rents, revenues, issues, earnings, profits or income thereof, or (v)
makes any general assignment for the benefit of creditors or (vi) makes and
admission in writing of its inability to pay its debts generally as they become
due; or (b) a court of competent jurisdiction enters an order, judgment or
decree approving a petition filed against Mortgagor or any guarantor or
endorser of the Note, seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future federal, state, or other statute law of regulation relating to
bankruptcy, insolvency or other relief for debtors, which order, judgment or
decree remains unvacated and unstayed for an aggregate of sixty (60) days
(whether or not consecutive) from the date of entry thereof; or (c) any
trustee, receiver or liquidator of Mortgagor or of all or any substantial part
of the Mortgaged Property or any or all of the rents, revenues, issues,
earnings, profits or income thereof, is appointed without the prior written
consent of Mortgagee, which appointment shall remain unvacated and unstayed for
an aggregate of sixty (60) days (whether or not consecutive).
(d) Default by Mortgagor under any other mortgage or any other
agreement or obligation of Mortgagor affecting any portion of the Mortgaged
Property; or default by Mortgagor under any other documents or instruments
securing the Note or any other indebtedness or Mortgagor to Mortgagee, if such
default is not cured within any grace period permitted therein and if such
default permits the holder to cause such obligation to become due prior to its
stated maturity. Mortgagor shall notify Mortgagee in writing of the occurrence
of such default within five (5) days thereof, specifying the nature of such
default.
(e) Material breach of any warranty or material untruth of any
representation of Mortgagor contained in the Note, this Mortgage or any other
instrument securing the Note.
2.02 Acceleration of Maturity. If an Event of Default shall have
occurred, and shall not be cured by Mortgagor within the proscribed period,
Mortgagee may declare the outstanding principal amount of the Note and the
interest accrued thereon, and all other sums secured hereby, to be due and
payable immediately, and upon such declaration such principal and interest and
other sums shall immediately become and be due and payable without demand or
notice.
2.03 Mortgagee's Power to Enforcement. If an uncured 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 Note 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
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Property, under the judgment or decree of a court or courts of competent
jurisdiction; (c) to foreclose any other mortgage or instruments securing the
Note and to sell, as an entirety or in separate lots or parcels, the property
mortgaged therein or in which a security interest is conveyed thereby under the
judgment of decree of a court or courts of competent jurisdiction or as
otherwise provided by law; and (d) to pursue any other remedy available to it
or at law or in equity in order to secure payment of sums due hereunder.
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 the
Mortgagee may determine.
2.04 Mortgagee's Right to Enter and Take Possession, Operate, and
Apply Income.
(a) If an uncured 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.
(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 possessions of all or
part of the Mortgaged Property to Mortgagee along with all books, paper and
accounts of Mortgagor, to the entry of which judgment or decree Mortgagor
hereby specifically consents, or, at Mortgagee's option, it may seek the
appointment of a Receiver.
(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;
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(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 determing 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 Note.
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.
2.05 Leases. Mortgagee, at its option, is authorized to foreclose
this Mortgage subject to any rights of any tenants of the Mortgaged Property,
and the failure to make such tenants party defendants to any such foreclosure
proceedings and to foreclose their rights will not be, not be asserted by
Mortgagor to be, a defense to any proceeding instituted by Mortgagee to collect
the sums secured hereby or to collect any deficiency remaining unpaid after the
foreclosure sale of the Mortgaged Property.
2.06 Purchase by Mortgagee. Upon and 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.
2.07 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
Note, this Mortgage or any other instrument securing the Note, in lieu of cash,
to the amount which shall, upon distribution of the net proceeds of such sale,
be payable thereon.
2.08 Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Mortgagor agrees to the full extent permitted by law that in
case of a default on its part hereunder, neither Mortgagor nor anyone claiming
through of 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
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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 or appraised for
the purpose of reducing any deficiency judgment obtained by Mortgagee against
Mortgagor and agrees that Mortgagee or any court having jurisdiction to
foreclose such lien may sell the Mortgaged Property in part or as an entirety.
/s/ CCBC
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lnitials CCBC
2.09 Receiver. If an Event of Default shall have occurred,
Mortgagee, to the extent permitted by law and without regard to 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, attorneys'
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 2.03. 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.
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 Note, this Mortgage and
any other instrument securing the Note, at the date of this institution of such
proceedings, and for any additional amounts which may become due and payable by
Mortgagor after such date.
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2.11 Mortgagor to Pay the Note 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 Note, this Mortgage or any other instrument securing the Note, and
should Mortgagor fail to cure such default after thirty (30) day notice, then,
upon Mortgagee's demand, Mortgagor will pay to Mortgagee the whole amount due
and payable under the Note 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
of 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 of foreclosure sale hereunder, or by the exercise of any
other right, power of 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 liens, 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 2.11 shall be applied as follows:
(i) First, to the payment of reasonable compensation,
expenses and disbursements of the agents and attorneys, as may be reasonable
and necessary as a result of the default of Mortgagor; and
(ii) Second, to payment of amounts due and unpaid under
the Note, this Mortgage and all other instruments securing the Note.
2.12 Delay or Omission of Waiver. No delay or omission of
Mortgagee or of any holder of the Note 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,
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power and remedy given to Mortgagee may be exercised from time to time and as
often as may be deemed expedient by Mortgagee.
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) waivers or does not exercise any right
granted in the Note, the Loan Agreement, this Mortgage or any other instrument
securing the Note; (d) releases any part of the Mortgaged Property from the
lien of this Mortgage or any other instrument securing the Note; (e) consents
to the filing of any map, plat or replat of the Land; (f) 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 Note, 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 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, unless
Mortgagee is paid in full hereunder, 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
original parties hereto and without in any way releasing or discharging any of
the liabilities or undertakings hereunder.
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.
2.15 Remedies Cumulative. No right, power or remedy conferred upon
or reserved to Mortgagee by the Note, this Mortgage or any other instrument
securing the Note 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 Note or any other instrument securing the Note, or now or hereafter
existing at law, in equity or by statute.
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ARTICLE THREE
MISCELLANEOUS PROVISIONS
3.01 Heirs, Successors and Assigns Included in Parties. Whenever
one of the parties hereto is named or referred to herein, the heirs, successors
and assigns of such party shall be included and all covenants and agreements
contained in this Mortgage, by or on behalf of Mortgagor or Mortgagee, shall
bind and inure to the benefit of their respective heirs, successors and
assigns, whether so expressed or not.
3.02 Addresses for Notices, Etc. Any notice, report, demand or
other instrument authorized or required to be given or furnished under this
Mortgage to Mortgagor or Mortgagee shall be deemed given or furnished if mailed
with appropriate postage or delivered to the address set forth in this
Agreement unless such address is changed in writing.
3.03 Headings. The headings of the articles, sections, paragraphs
and subdivisions of this Mortgage are for convenience of reference only, are
not to be considered a part hereof, and shall not limit or expend or otherwise
affect any of the terms hereof.
3.04 Invalid Provisions to Affect No Others. In the event that any
of the covenants, agreement, terms or provisions contained in the Note, this
Mortgage or any other instrument securing the Note shall be invalid, illegal or
unenforceable in any respect, the validity of the remaining covenants,
agreements, terms or provisions contained herein and in the Note and any other
instrument securing the Note shall be in no way affected, prejudiced or
disturbed thereby.
3.05 Changes, Etc. Neither this Mortgage nor any term hereof may
be changed, waiver, discharged or terminated orally, or by any action or
inaction, but only by an instrument in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is sought.
Any agreement hereafter made by Mortgagor and Mortgagee relating to this
Mortgage shall be superior to the rights of the holder of any intervening lien
or encumbrance.
3.06 Governing Law. This Mortgage is made by the Mortgagor and
accepted by Mortgagee in the State of South Carolina, with reference to the
laws of such state, and shall be construed, interpreted, enforced and governed
by and in accordance with such laws (excluding the principles thereof governing
conflicts of law).
3.07 Default Rate. The Default Rate shall be as provided in the
Note; in the event no such rate is provided therein, the Default Rate shall be
the maximum rate of Lnterest permitted by law at the time of default or
eighteen (18%) percent per annum, whichever is less.
3.08 Assignment by Mortgagee - This Mortgage and the accompanying
Note can be assigned by the Mortgagee.
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ARTICLE FOUR
LENDING PROVISIONS
4.01 Breach of Other Documents. Notwithstanding anything to the
contrary contained in this Mortgage or in the Note, or in any other instrument
securing the loan evidenced by such Note, upon an uncured Event of Default,
Mortgagee may at its option declare the entire indebtedness hereunder,
immediately due and payable and/or exercise all additional rights accruing to
it under this Mortgage in the event of a breach by Mortgagor of any covenant
contained in this Mortgage or in the Note between Mortgagor and Mortgagee.
4.02 Partial Foreclosure. In the event the Mortgaged Property is
comprised of more than one (1) parcel of real property, Mortgagor hereby waives
any right to require Mortgagee to foreclose of exercise any of its other
remedies against all of the Mortgaged Property as a whole or to require
Mortgagee to foreclose or exercise such remedies against one portion of the
Mortgaged Property prior to the foreclosure or exercise of said remedies
against other portions of the Mortgaged Property.
IN WITNESS WHEREOF, the undersigned have executed this instrument the
day and year first above written.
SIGNED, SEALED AND DELIVERED CAROLINA CENTER BUILDING CORP.
IN THE PRESENCE OF:
/s/ BY: /s/ Kumar X. Xxxxxxxxxxx
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/s/ Attest:
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STATE OF SOUTH CAROLINA )
) P R 0 B A T E
COUNTY OF BEAUFORT )
PERSONALLY appeared before me, the undersigned witness, and
made oath that s/he saw the within named ???, as authorized officer of Carolina
Center Building Corp., seal and as its act and deed, deliver the within written
Instrument, and that s/he, with the other witness whose signature appears
above, witnessed the execution.
/s/
-----------------------------
SWORN TO before me this
31st day of October, 1996.
/s/
--------------------------------
Notary Public for South Carolina
My Commission Expires: 10/2/2001
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