Exhibit 10.92
MORTGAGE, SECURITY AGREEMENT,
FIXTURE FINANCING STATEMENT AND
ASSIGNMENT OF LEASES AND RENTS
THIS MORTGAGE, SECURITY AGREEMENT, FIXTURE FINANCING STATEMENT AND ASSIGNMENT OF
LEASES AND RENTS (the "Mortgage") made as of the __ day of March, 2001, by
XXXXXXX TECHNOLOGIES OF MINNESOTA, INC., a Minnesota corporation (the
"Mortgagor"), in favor of XXXXXX BUSINESS FINANCE CORPORATION, a Minnesota
corporation (the "Mortgagee").
WITNESSETH:
WHEREAS, the Mortgagee has agreed to make a loan to the Mortgagor in the amount
of $950,000 pursuant to the terms and subject to the conditions set forth in
that certain loan agreement of even date herewith by and between the Mortgagee
and the Mortgagor (the "Loan Agreement"); and
WHEREAS, the Mortgagor has executed and delivered that certain $950,000 real
estate term note of even date herewith and payable to the order of Mortgagee
(the Note") which Note is due and payable in full on April 1, 2006; and
WHEREAS, the Mortgagee has required as an express condition precedent to making
loans to the Mortgagor pursuant to the Note that the Mortgagor secure the Note
by this Mortgage.
NOW THEREFORE, THIS MORTGAGE FURTHER WITNESSETH, that in consideration of the
Mortgagee making loan(s) to the Mortgagor pursuant to the Note in the principal
amount of up to NINE HUNDRED FIFTY THOUSAND and 00/100 Dollars ($950,000.00)
(the "Mortgage Amount") and other good and lawful consideration, the receipt and
sufficiency of which are hereby acknowledged, and to secure, and as security
for, the payment of principal of interest and other premiums, penalties and
charges on the Note and the performance and observance by the Mortgagor of all
of the covenants, agreements, representations, warranties and conditions
contained herein, the Mortgagor does hereby grant, bargain, sell, convey,
assign, transfer, pledge, set over and confirm unto the Mortgagee, its
successors and assigns, forever, and does hereby grant a mortgage lien and
security interest to the Mortgagee, its successors and assigns, forever, in and
to the tract(s) of land legally described in Exhibit A, legal description,
attached hereto and made a part hereof (hereinafter referred to as the "Land");
Together with (a) all of the buildings, structures and other improvements now
standing or at any time hereafter constructed or placed upon the Land; (b) all
heating, plumbing and lighting apparatus, elevators and motors, engines and
machinery, electrical equipment, incinerator apparatus, air-conditioning
apparatus, water and gas apparatus, pipes, water heaters, refrigerating plant
and refrigerators, water softeners, carpets, carpeting, storm windows and doors,
window screens, screen doors, storm sash, window shades or blinds, awnings,
locks, fences, trees, shrubs, and all other furniture, fixtures, machinery,
equipment, appliances and personal property of every
kind and nature whatsoever now or hereafter owned by the Mortgagor and attached
or affixed or located on or in or used or intended to be used in connection with
the ownership, use, operation or maintenance of, the Land and any improvements
located thereon, including all extensions, additions, improvements, betterments,
renewals and replacements of any of the foregoing; (c) all hereditaments,
easements, rights, privileges and appurtenances now or hereafter belonging,
attached or in any way pertaining to the Land or to any building, structure or
improvement now or hereafter located thereon; (d) the immediate and continuing
right to receive and collect all rents, income, issues and profits now due and
which may hereafter become due under or by virtue of any lease or agreement
(oral or written) for the leasing, subleasing, use or occupancy of all or part
of the Land now, heretofore or hereafter made or agreed to by the Mortgagor; (e)
all of the leases and agreements described in (d) above, together with all
guarantees therefor and any renewals or extensions thereof; and (f) all
insurance and other proceeds of, and all condemnation awards with respect to,
the foregoing (all of the foregoing is hereinafter collectively referred to as
the "Mortgaged Property").
The filing of this Mortgage shall constitute a fixture filing in the office
where it is filed and a carbon, photographic or other reproduction of this
document may also be filed as a financing statement:
Name and Address of XXXXXXXX TECHNOLOGIES
OF MINNESOTA, INC.
Debtor and Record 00000 Xxxxxxx Xxxxxx South
Owner of Real Estate: Xxxxxx, XX 00000
Federal Identification No. 00-0000000
Name and Address of XXXXXX BUSINESS FINANCE CORPORATION
Secured Party: 000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xx. Xxxx, XX 00000
Description of the Types Property referred to above as "Land"
(or items) of property and "Mortgaged Property"
covered by this
financing statement:
Description of real estate See Exhibit "A" attached
to which all or a part hereto.
of the collateral is
attached or upon which
it is located:
Some of the above described collateral is or is to become fixtures upon or
minerals and mineral rights located upon the real estate described on Exhibit
"A", legal description, and this financing statement is to be filed for record
in the public real estate records.
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AND THE MORTGAGOR, for itself, its successors and assigns, does covenant with
the Mortgagee, its successors and assigns, that it is lawfully seized of the
Mortgaged Property and has good right to sell and convey the same; that the
Mortgaged Property is free from all encumbrances except as may be further stated
in this Mortgage; that the Mortgagee, its successors and assigns, shall quietly
enjoy and possess the Mortgaged Property; and that the Mortgagor will WARRANT
AND DEFEND the title to the same against all lawful claims not specifically
excepted in this Mortgage.
PROVIDED, NEVERTHELESS, that if the Mortgagor shall pay the principal balance of
the Note in full, plus interest at the rate set forth in the Note, as the same
changes from time to time and is adjusted in the manner set forth in the Note,
on the unpaid principal balance, as computed in accordance with the terms and
conditions of the Note, and any other sums due and owing under the Note and the
Loan Agreement and shall also pay or cause to be paid all other sums, with
interest thereon, as may be advanced by the Mortgagee in accordance with this
Mortgage either to protect the lien of this Mortgage, or by way of additional
loan or for any other purpose, and shall also keep and perform all and singular
the covenants herein, required on the part of the Mortgagor to be kept and
performed (the Note, including any and all renewals, amendments, extensions and
modifications thereof, and all such sums, together with interest thereon, and
such covenants herein collectively referred to as the "Indebtedness Secured
Hereby"), then this Mortgage shall be null and void, in which event the
Mortgagee will execute and deliver to the Mortgagor in form suitable for
recording a full satisfaction of this Mortgage; otherwise this Mortgage shall
remain in full force and effect.
ARTICLE I
GENERAL COVENANTS, AGREEMENTS, WARRANTIES
Section 1.1. PAYMENT OF INDEBTEDNESS; OBSERVANCE OF COVENANTS. The Mortgagor
shall duly and punctually pay each and every payment of principal, interest and
all prepayment premiums and late charges, if any, required by the Note or the
Loan Agreement and all other Indebtedness Secured Hereby, as and when the same
shall become due, and shall duly and punctually perform and observe all of the
covenants, agreements and provisions contained herein, in the Loan Agreement or
in any other instrument given as security for the payment of the Note.
Section 1.2. MAINTENANCE; REPAIRS. Subject to the provisions of Section 2.3
hereof, the Mortgagor shall keep and maintain the Mortgaged Property in good
condition, repair and operating condition free from any waste or misuse, and
will comply with all requirements of law, municipal ordinances and regulations,
restrictions and covenants affecting the Mortgaged Property and its use, and
will promptly repair or restore any building, improvements or structures now or
hereafter located on the Land which may become damaged or destroyed to their
condition prior to any such damage or destruction. The Mortgagor shall not
acquiesce in any rezoning classification, modification or restriction affecting
the Land, without the prior written consent of the Mortgagee, which consent
shall not be unreasonably withheld. The Mortgagor shall not vacate or abandon
the Mortgaged Property.
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Section 1.3. PAYMENT OF UTILITY CHARGES, TAXES AND ASSESSMENTS. The Mortgagor
shall, before any penalty attaches thereto, pay or cause to be paid all charges
made for electricity, gas, heat, water, sewer and other utilities furnished or
used in connection with the Mortgaged Property, and all taxes, assessments and
levies of every nature heretofore or hereafter assessed against the Mortgaged
Property and upon demand will furnish the Mortgagee receipted bills evidencing
such payment.
Nothing in this Section 1.3 shall require the payment or discharge of any
obligations imposed upon the Mortgagor by this Section so long as the Mortgagor
shall diligently and in good faith and at its own expense contest the same or
the validity thereof by appropriate legal proceeding which shall operate to
prevent the collection thereof or other realization thereon and the sale or
forfeiture of the Mortgaged Property or any part thereof to satisfy the same;
provided, however, that during such contest the Mortgagor shall, at the
reasonable request of the Mortgagee, provide security satisfactory to the
Mortgagee, assuring the discharge of the Mortgagor's obligation under this
Section and of any additional charge, penalty or expense arising from or
incurred as a result of such contest; and provided further, however, that if at
any time payment of any obligation imposed upon the Mortgagor by this Section
shall become necessary to prevent the delivery of a tax deed conveying the Land
or any portion thereof because of nonpayment, then the Mortgagor shall pay the
same in sufficient time to prevent the delivery of such tax deed.
Section 1.4. LIENS. Except for liens and encumbrances, if any, listed on Exhibit
B attached hereto or consented to in writing by or granted to the Mortgagee
("Permitted Encumbrances"), the Mortgagor will keep the Mortgaged Property free
from all liens (other than liens for taxes, assessments and mechanics' liens not
yet due and payable) and encumbrances of every nature whatsoever heretofore or
hereafter arising and, upon written demand of the Mortgagee, the Mortgagor will
pay and procure the release of any such lien or encumbrances.
Section 1.5. COMPLIANCE WITH LAW. The Mortgagor will promptly comply with all
present and future laws, ordinances, rules and regulations of any governmental
authority affecting the Mortgaged Property unless the same is being diligently
contested by the Mortgagor in good faith and by proper proceedings.
Section 1.6. RIGHT OF MORTGAGEE TO ENTER. The Mortgagor will permit the
Mortgagee and its agents to enter, and to authorize others to enter, upon any or
all of the Land, at any time and from time to time, during normal business
hours, to inspect the Mortgaged Property to perform or observe any covenants,
conditions or terms hereunder which the Mortgagor shall fail to perform, meet or
comply with, or for any other purpose in connection with the protection or
preservation of the Mortgagee's security, without thereby becoming liable to the
Mortgagor or any person in possession under the Mortgage.
Section 1.7. RIGHT OF THE MORTGAGEE TO PERFORM. If the Mortgagor fails to pay
all and singular any taxes, assessments, levies or other similar charges or
encumbrances heretofore or hereafter assessed against the Mortgaged Property or
fails to obtain the release of any lien or encumbrance (other than a Permitted
Encumbrance) of any nature heretofore or hereafter arising upon the Mortgaged
Property or fails to perform any other covenants and agreements contained in
this Mortgage or if any action or proceeding is commenced which adversely
affects or questions the title to or possession of the Mortgaged Property or the
interest of the Mortgagor or
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the Mortgagee therein, then the Mortgagee, at the Mortgagee's option, without
notice to the Mortgagor, may perform such covenants and agreements, investigate
and defend against such action or proceeding, and take such other action as the
Mortgagee deems necessary to protect the Mortgagee's interest. Any amounts
disbursed by the Mortgagee pursuant to this Section 1.7, including without
limitation court costs and expenses and attorneys' fees, with interest thereon,
shall become additional indebtedness of the Mortgagor and shall be secured by
this Mortgage. Such amount shall be payable upon written notice from the
Mortgagee to the Mortgagor requesting payment thereof, and shall bear interest
from the date of disbursement at a rate equal to the greater of (i) the rate of
interest then in effect under the Note, or (ii) eighteen percent (18%) per annum
or, if such rate is illegal or usurious, at the maximum rate then permitted by
law. Nothing contained in this Section 1.7 shall require the Mortgagee to incur
any expense or to do any act or thing hereunder.
Section 1.8. ASSUMPTION. The Mortgagor shall not sell, assign, lease, convey,
mortgage or otherwise encumber or dispose of either the legal or equitable title
or both to all or any portion of the Mortgaged Property or any other interest
therein without the prior written consent of the Mortgagee. A sale, transfer,
assignment or other disposition of any shares of stock in, or any general or
limited partnership interest in, the Mortgagor shall constitute and be deemed a
sale of all or a part of the Mortgaged Property for purposes of this Section
1.8.
Section 1.9. ASSIGNMENT OF RENTS. The Mortgagor does hereby sell, assign and
transfer unto the Mortgagee (i) the immediate and continuing right to receive
and collect all rents, income, issues and profits now due and which may
hereafter become due under or by virtue of any lease or agreement (oral or
written) for the leasing, subleasing, use or occupancy of all or any part of the
Mortgaged Property now, heretofore or hereafter made or agreed to by the
Mortgagor, and (ii) all of such leases and agreements, together with all
guarantees therefor and any renewals or extensions thereof, for the purpose of
securing payment of the indebtedness of the Mortgagor under the Note and the
documents related thereto.
The Mortgagor does hereby irrevocably appoint the Mortgagee its true and lawful
attorney in its name, place and stead, with or without taking possession of the
Mortgaged Property, to rent, lease, sublease, let or sublet all or any portion
of the Mortgaged Property to any party or parties at such rental and upon such
terms, as it in its discretion may determine, and to collect all of said avails,
rents, income, issues and profits arising from or accruing at any time hereafter
under each and all of such leases and agreements, with the same rights and
powers and subject to the same immunities, exoneration of liability and rights
of recourse and indemnity as the Mortgagee would have upon taking possession of
the Mortgaged Property.
The Mortgagor represents and agrees that no rent has been or will be paid in
advance by any persons in possession of all or any portion of the Mortgaged
Property for a period of more than one month and that the payment of none of the
rents to accrue for all or any portion of the Mortgaged Property has or will be
waived, released, reduced or discounted, or otherwise discharged or compromised,
by the Mortgagor. The Mortgagor waives any right of setoff against any person in
possession of all or any portion of the Mortgaged Property. The Mortgagor
represents that it has not assigned any of said rents or profits to any third
party and agrees that it will not so assign any of said rents or profits without
the prior written consent of the Mortgagee.
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Nothing contained herein shall be construed as constituting the Mortgagee "a
mortgagee in possession" in the absence of the taking of actual possession of
the Mortgaged Property by the Mortgagee. In the exercise of the powers herein
granted to the Mortgagee, no liability shall be asserted or enforced against the
Mortgagee, all such liability being expressly waived and released by the
Mortgagor.
The Mortgagor further agrees to assign and transfer to the Mortgagee all rents
from future leases or subleases upon all or any part of the Mortgaged Property
and to execute and deliver, immediately upon request of the Mortgagee, as such
further assurances and assignments in the Mortgaged Property as the Mortgagee
from time to time shall require.
Although it is the intention of the parties that this Assignment of Rents shall
be a present assignment, it is expressly understood and agreed that, anything
herein contained to the contrary notwithstanding, the Mortgagee shall not
exercise any of the rights and powers conferred upon it herein unless and until
an "Event of Default" shall occur and nothing herein contained shall be deemed
to affect or impair any rights which the Mortgagee may have under the Note, the
Loan Agreement, this Mortgage or any other document or agreement related hereto
or thereto.
Mortgagor acknowledges and agrees that this assignment of leases and rents, and
the Mortgagee's rights and remedies hereunder, may be enforced by the Mortgagee
throughout the entire redemption period provided by applicable law following any
foreclosure sale of all or any portion of the Mortgaged Property.
At any time after the occurrence of an Event of Default, the Mortgagee, without
in any way waiving such default, may:
I. at the Mortgagee's option without notice to the Mortgagor and without
regard to the adequacy of the security for the Note, either in person or
by agent, with or without any action or proceeding, or by a receiver
appointed by a court of competent jurisdiction pursuant to Minnesota
Statutes, Section 559.17, Subd. 2, peaceably take possession of the
Mortgaged Property and have, hold, manage, lease, sublease and operate the
same as a mortgagee in possession; or
II. the Mortgagee, without taking possession of the Mortgaged Property,
may xxx for or otherwise collect and receive all rents, income and profits
from the Mortgaged Property to which the Mortgagor would otherwise be
entitled, including those past due and unpaid with full power to make from
time to time all adjustments thereto, as may seem proper to the Mortgagee.
The Mortgagee shall not be obligated to perform or discharge, nor does it hereby
undertake to perform or discharge, any obligation, duty or liability under any
leases, sublease or rental agreements relating to the Mortgaged Property, and
the Mortgagor shall and does hereby agree to indemnify and hold the Mortgagee
harmless from and against any and all liability, loss or damage which it may or
might incur under any such lease, sublease or agreement or under or by reason of
the assignment of the rents thereof and from and against any and all claims and
demands whatsoever which may be asserted against it by reason of any alleged
obligations or undertakings on its part to perform or discharge any of the
terms, covenants or agreements contained in any of
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such leases, provided that the Mortgagor shall not indemnify and hold harmless
the Mortgagee from any liability, loss or damage resulting from acts or
omissions of the Mortgagee which occur on or after the date the Mortgagee takes
possession of the Mortgaged Property. Should the Mortgagee incur any liability,
loss or damage by reason of this assignment of leases and rents, or in the
defense of any claim or demand, the Mortgagor agrees to reimburse the Mortgagee
for the amount thereof, including costs, expenses and attorney's fees,
immediately upon demand.
The Mortgagee, or such agent or receiver, in the exercise of the rights and
powers conferred upon it by this assignment of leases and rents shall have the
full power to use and apply the avails, rents, issues, income and profits of the
Mortgaged Property to which the Mortgagor would otherwise be entitled to the
payment of or on account of the following in the order listed below:
I. Reasonable receiver's fees;
II. Application of tenant security deposits as required by Minnesota
Statutes, Section 504.20;
III. Payment, when due, of prior or current real estate taxes or
special assessments with respect to the Mortgaged Property, or the
periodic escrow for the payment of the taxes or special assessments;
IV. Payment, when due, of premiums for insurance of the type
required by this Mortgage, or the periodic escrow for the payment of the
premiums; and
V. All expenses for normal maintenance of the Mortgaged Property;
provided, however, that nothing herein shall prohibit the right to reinstate
pursuant to Minnesota Statutes, Section 580.30, or the right to redeem granted
pursuant to Minnesota Statutes, Sections 580.23 and 581.10.
Any excess cash remaining after paying the expenses listed in clauses (I)
through (V) above shall be applied to the payment of the Note and shall be
deemed to be credited to the amount required to be paid to effect a
reinstatement or redemption or, if the period of redemption ends without
redemption, such remaining amounts shall be paid to the purchaser at the
foreclosure sale, its successors or assigns.
The Mortgagor does further specifically authorize and instruct each and every
present and future lessee, sublessee, tenant or subtenant of the whole or any
part of the Mortgaged Property to pay all unpaid rental agreed upon in any lease
or sublease to the Mortgagee upon receipt of demand from the Mortgagee so to pay
the same.
Any tenants, subtenants or other occupants of all or any part of the Mortgaged
Property are hereby authorized to recognize the claims of the Mortgagee
hereunder without investigating the reason for any action taken by the
Mortgagee, or the validity or the amount of indebtedness owing to the Mortgagee,
or the occurrence or existence of any Event of Default, or the application to be
made by the Mortgagee of any amounts to be paid to the Mortgagee. The sole
signature of any officer or attorney of the Mortgagee shall be sufficient for
the exercise of any rights under this assignment of leases and rents and the
sole receipt of the Mortgagee for any
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sums received by such tenants, subtenants or other occupants shall be a full
discharge and release therefor. Checks for all or any part of the rentals
collected under this Assignment of Leases and Rents shall be drawn to the
exclusive order of the Mortgagee.
Section 1.10. FURTHER ASSURANCES. At any time and from time to time, upon
request by the Mortgagee, the Mortgagor will make, execute and deliver or cause
to be made, executed and delivered, to the Mortgagee, any and all other further
instruments, certificates and other documents as may, in the reasonable opinion
of the Mortgagee, be necessary or desirable in order to effectuate, complete or
perfect, or to continue and preserve, the obligations of the Mortgagor hereunder
and under the Note, the Loan Agreement and the mortgage and security interest
granted by this Mortgage. Upon any failure by the Mortgagor so to do, the
Mortgagee may make, execute and record any and all such instruments,
certificates and documents for and in the name of the Mortgagor and the
Mortgagor hereby irrevocably appoints the Mortgagee its agent and attorney in
fact of the Mortgagor so to do.
Section 1.11. EXPENSES. The Mortgagor will pay or reimburse the Mortgagee for
all attorney's fees, costs and expenses incurred by the Mortgagee in any legal
proceeding or dispute of any kind in which the Mortgagee is made a party, or
appears as party plaintiff or defendant, affecting the Indebtedness Secured
Hereby, this Mortgage, the interest created herein or the Mortgaged Property,
including but not limited to the exercise of the power of sale set forth in this
Mortgage, any condemnation action involving the Mortgaged Property or any action
to protect the security hereof and any such amounts paid by the Mortgagee shall
be added to the indebtedness secured by this Mortgage.
Section 1.12. BOOKS AND RECORDS; FINANCIAL STATEMENTS. The Mortgagor will keep
and maintain full, true and accurate books of account adequate to reflect
correctly the results of the operation of the Mortgaged Property, all of which
books and records relating thereto shall be open to inspection by the Mortgagee
or its representative during normal business hours.
Section 1.13. HAZARDOUS SUBSTANCES. Except as disclosed in that certain Phase I
Environmental Assessment dated June 2, 1997 and Phase II Environmental
Assessment dated February, 1998 prepared by Rust Environment & Infrastructure,
as updated and certified to the Mortgagee on March 24, 2001 (collectively, the
"Environmental Report"), the Mortgagor warrants, covenants and represents that
there does not exist in or under the Mortgaged Property any pollutant, toxic or
hazardous waste or substance, or any other material the release or disposal of
which is regulated by any law, regulation, ordinance or code related to
pollution or environmental contamination, and, that no part of the Mortgaged
Property was ever used for any industrial or manufacturing purpose or as a dump,
sanitary landfill, or gasoline service station, and that there exists on the
Mortgaged Property no storage tanks, electrical transformers or other equipment
containing PCBs or material amounts of asbestos. Except as disclosed in the
Environmental Report, the Mortgagor represents that it has received no summons,
citations, directives, letters or other communications, written or oral, from
any federal, state or local agency or department concerning the storing,
releasing, pumping, pouring, emitting, emptying or dumping of any pollutant,
toxic or hazardous waste or substance on the Mortgaged Property.
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The Mortgagor covenants and agrees that, except in the ordinary course of its
business and in compliance with all applicable federal, state and county, rules
and regulations, statutes and ordinances (including, without limitation,
obtaining and maintaining the necessary permits and licenses), it shall not, nor
shall it permit others to, use the Mortgaged Property for the business of
generating, transporting, storing, treating or disposing of any pollutant, toxic
or hazardous waste or substance in violation of any applicable laws,
regulations, ordinances and codes, nor shall it either take or fail to take any
action which may result in a release of any hazardous substance from or onto the
Mortgaged Property in violation of any applicable laws, regulations, ordinances
and codes. In addition to all rights of access granted the Mortgagee pursuant to
Section 1.6 hereof, during the term of the loan contemplated hereby, the
Mortgagee, or any authorized agent, contractor or representative of the
Mortgagee, is hereby irrevocably authorized to enter upon the Mortgaged Property
at any time and from time to time for the purpose of performing inspections,
taking soil borings or other borings, or conducting any other tests or
procedures on, in or about the Mortgaged Property as the Mortgagee deems
necessary or appropriate to determine whether any hazardous or toxic substances,
including without limitation asbestos or PCBs, are present on, under or about
the Mortgaged Property in violation of any applicable laws, regulations,
ordinances and codes.
The Mortgagor agrees to indemnify and to hold the Mortgagee harmless from any
and all claims, causes of action, damages, penalties, and costs (including, but
not limited to, attorneys' fees, consultants' fees and related expenses) which
may be asserted against, or incurred by, the Mortgagee resulting from or due to
release of any hazardous substance or waste on the Mortgaged Property or arising
out of any injury to human health or the environment by reason of the condition
of or past activity upon the Mortgaged Property. The Mortgagor's duty to
indemnify and hold harmless includes, but is not limited to, proceedings or
actions commenced by any person (including, but not limited to, any federal,
state, or local governmental agency or entity) before any court or
administrative agency. The Mortgagor further agrees that pursuant to its duty to
indemnify under this section, the Mortgagor shall indemnify the Mortgagee
against all expenses incurred by the Mortgagee as they become due and not
waiting for the ultimate outcome of the litigation or administrative proceeding.
The Mortgagor's obligations to indemnify and hold the Mortgagee harmless
hereunder shall survive repayment of the Mortgage Amount and satisfaction or
foreclosure of this Mortgage.
Section 1.14. LEASES. The Mortgagor shall fully pay and perform each and all of
its obligations under any leases relating to the Land in a timely manner. The
Mortgagor shall not amend, terminate, surrender or compromise such leases
without the prior written consent of the Mortgagee.
Section 1.15. TAX ESCROW. The Mortgagee may require the Mortgagor to pay to the
Mortgagee, on each day monthly installments of principal and/or interest are
payable under the Note, until the Note is paid in full, a sum equal to
one-twelfth (1/12) of the annual taxes and assessments payable with respect to
the Mortgaged Property, all as estimated initially and from time to time
determined by the Mortgagee, to be applied by the Mortgagee to pay said taxes
and assessments (such amounts being hereinafter referred to as the "Funds"). The
Mortgagee shall apply the Funds to pay said taxes and assessments prior to the
date that penalty attaches for non-
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payment. The Funds are hereby pledged as additional security for the
Indebtedness Secured Hereby. No interest shall accrue on the Funds.
If the amount of the Funds held by the Mortgagee shall exceed at any time the
amount deemed necessary by the Mortgagee to provide for the payment of taxes and
assessments, such excess shall, at the option of the Mortgagee, either be
promptly repaid to the Mortgagor or be credited to the Mortgagor on the next
monthly installment of Funds due. If at any time the Funds are less than the
amount deemed necessary by Mortgagee to pay taxes and assessments as they fall
due, the Mortgagor shall promptly pay to the Mortgagee any amount necessary to
make up the deficiency upon written notice from the Mortgagee to the Mortgagor
requesting payment thereof.
Upon demand for payment for the outstanding principal balance and interest due
under the Note, the Mortgagee may apply in any order as the Mortgagee shall
determine in its sole discretion, any Funds held by the Mortgagee at the time of
application to pay taxes and assessments which are then or will thereafter
become due or as a credit against the Indebtedness Secured Hereby. Upon payment
in full of all Indebtedness Secured Hereby, the Mortgagee shall promptly refund
to the Mortgagor any Funds held by the Mortgagee.
ARTICLE II
INSURANCE, CONDEMNATION AND USE OF PROCEEDS
Section 2.1. INSURANCE. Until the Indebtedness Secured Hereby has been paid in
full, the Mortgagor shall obtain and maintain the following:
(1) The Mortgagor shall maintain such insurance (including, without
limitation, liability insurance), in such form and amount, as required by
the Loan Agreement.
(2) All insurance shall be carried in companies licensed to do
business in the State of Minnesota and approved by the Mortgagee and the
policies and renewals thereof shall (i) contain a waiver of defense based
on coinsurance, (ii) be constantly assigned and pledged to and held by the
Mortgagee as additional security for the Indebtedness Secured Hereby,
(iii) have attached thereto loss-payable clauses in favor of and in form
acceptable to the Mortgagee, and (iv) provide that the Mortgagee shall
receive at least thirty (30) days' prior written notice of cancellation or
any substantial modification of the policy. In default thereof, the
Mortgagee may effect any insurance required to be maintained by the
Mortgagor pursuant to this Section 2.1 and the amount paid therefor shall
become immediately due and payable with interest at a rate equal to the
greater of (i) the rate of interest then in effect under the Note, or (ii)
eighteen percent (18%) per annum or, if such rate is illegal or usurious,
at the maximum rate permitted by law, and shall be secured by this
Mortgage. In the event of loss or damage to the Mortgaged Property, the
Mortgagor will give immediate written notice thereof to the Mortgagee, who
may make proof of loss or damage if not made promptly by the Mortgagor.
The Mortgagor hereby authorizes the Mortgagee to settle and compromise all
claims on such policies and hereby authorizes and directs each insurance
company concerned to make payment for any such loss to the
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Mortgagor and the Mortgagee jointly. In the event of foreclosure of this
Mortgage, all right, title and interest of the Mortgagor in and to any
property insurance policies then in force shall pass to the purchaser at
the foreclosure sale.
Section 2.2. CONDEMNATION. The Mortgagor shall give the Mortgagee immediate
written notice of the actual or threatened commencement of any proceedings under
condemnation or eminent domain affecting all or any part of the Mortgaged
Property or any easement therein or appurtenance thereof immediately after the
Mortgagor obtains actual knowledge of the same. If all or any part of the
Mortgaged Property is damaged, taken or acquired, either temporarily or
permanently, in any condemnation proceeding, or by exercise of the right of
eminent domain, the amount of any award or other payment for such taking,
acquisition or damages made in consideration thereof, to the extent of the full
amount of the remaining unpaid balance of the Indebtedness Secured Hereby, is
hereby assigned to the Mortgagee, who is empowered to collect and receive the
same and to give proper receipts therefor in the name of the Mortgagor and the
same shall be paid forthwith to the Mortgagee, to be applied to the Indebtedness
Secured Hereby, and any excess shall be paid to the Mortgagor.
Section 2.3. MORTGAGOR TO REPAIR, REPLACE, REBUILD OR RESTORE. If any
Indebtedness Secured Hereby is outstanding when all or any part of the Mortgaged
Property is destroyed or damaged,
(1) the Mortgagor shall either prepay the Note in full or proceed
promptly, subject to the provisions of subsection (2) of this Section 2.3,
to replace, repair, rebuild and restore the Mortgaged Property to
substantially the same condition as existed before the taking or event
causing the damage or destruction, with such changes, alterations and
modifications (including substitution or addition of other property) as
may be desired by Mortgagor and approved by Mortgagee, which approval will
not be unreasonably withheld; provided, however, that prior to commencing
such repair or replacement, Mortgagor shall provide Mortgagee with
satisfactory documentation evidencing that the insurance proceeds will be
sufficient to cover all construction and related costs;
(2) all proceeds of any insurance claim shall be paid directly to
the Mortgagee. The Mortgagee shall apply the proceeds, less such sum, if
any, required for payment of all expenses incurred in collecting the same
("Net Proceeds"), to payment of the costs of repair, replacement,
rebuilding or restoration of the Mortgaged Property upon compliance with
such construction and disbursement terms as the Mortgagee may deem
reasonably necessary, including deposit by the Mortgagor with the
Mortgagee of such funds of the Mortgagor as may be required to insure
payment of all costs of rebuilding, restoration, repair or replacement. If
such deposit is not made when requested by the Mortgagee, or if an Event
of Default occurs while the Mortgagee is retaining the Net Proceeds, the
Mortgagee may apply the Net Proceeds to the Indebtedness Secured Hereby.
The balance of the Net Proceeds remaining after payment of all costs of
any repair, rebuilding, replacement or restoration of the Mortgaged
Property shall be applied as a prepayment of the Indebtedness Secured
Hereby, and any excess shall be paid to the Mortgagor; and
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(3) the Mortgagor shall not, by reason of the payment of any costs
of repair, rebuilding, replacement or restoration, be entitled to any
reimbursement from the Mortgagee or any abatement or diminution of the
amounts payable under the Note, the Loan Agreement or on any other
Indebtedness Secured Hereby.
ARTICLE III
REMEDIES
Section 3.1. REMEDIES. Upon the occurrence of an Event of Default or at any time
thereafter, the Mortgagee may, at its option, exercise any and all of the
following rights and remedies (and any other rights and remedies available to it
under applicable law or any document related hereto):
(1) The Mortgagee may foreclose this Mortgage by action or advertisement
upon written notice thereof to the Mortgagor, and the Mortgagor
hereby authorizes the Mortgagee to do so, power being herein
expressly granted to sell the Mortgaged Property at public auction
without any prior hearing thereof and to convey the same to the
purchaser, in fee simple, pursuant to the statutes of Minnesota in
such case made and provided and, out of the proceeds arising from
such sale, to pay all Indebtedness Secured Hereby with interest, and
all legal costs and charges of such foreclosure and the maximum
attorney's fees permitted by law, which costs, charges and fees the
Mortgagor herein agrees to pay, and to pay the surplus, if any, to
the Mortgagor, its successors or assigns; and
(2) In the event of a sale under this Mortgage, whether by virtue of
judicial proceedings or otherwise, the Mortgaged Property may, at
the option of the Mortgagee, be sold as one parcel and as an
entirety or in such parcels, manner and order as the Mortgagee in
its sole discretion may elect.
Section 3.2. PURCHASE OF MORTGAGED PROPERTY. In case of any sale of the
Mortgaged Property pursuant to any judgment or decree of any court or otherwise
in connection with the enforcement of any of the terms of this Mortgage, the
Mortgagee, its successors and assigns, may become the purchaser, and for the
purpose of making settlement for or payment of the purchase price, shall be
entitled to turn in and use the Note and any claims for interest, late charges
and prepayment premiums matured and unpaid thereon, together with any other
Indebtedness Secured Hereby, if any, in order that there may be credited as paid
on the purchase price the sum, or any part thereof, then due under the Note,
including principal thereof and interest, late charges and prepayment premiums,
if any, thereon, and any other Indebtedness Secured Hereby.
ARTICLE IV
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MISCELLANEOUS
Section 4.1. SUCCESSORS AND ASSIGNS. The covenants and agreements contained
herein, including, without limitation, the provision of Section 1.8 hereof,
shall bind, and the rights hereunder shall inure to, the respective heirs,
successors and assigns of the Mortgagor and the Mortgagee, including among the
Mortgagor's assigns any purchasers or transferees of the Mortgaged Property.
Section 4.2. NOTICES. Any notice, request, demand or other communication
permitted or required hereunder shall be deemed duly given if delivered or
mailed postage prepaid, certified or registered, addressed to the address of
such party on page 2 of this Mortgage.
Section 4.3. HEADINGS. The headings of the sections contained herein are for
convenience only and are not to be construed to be a part of or limit or affect
the terms hereof.
Section 4.4. EXPENSES. The Mortgagor shall reimburse the Mortgagee and any
participant, upon demand, for all costs and expenses, including, without
limitation, reasonable attorneys' fees, appraisal fees, survey fees, closing
charges, documentary or tax stamps, recording and filing fees, insurance
premiums and service charges, paid or incurred by the Mortgagee in connection
with (i) the preparation, negotiation, approval, execution and delivery of the
Loan Agreement, the Note, the Mortgage and the Guaranty (as those terms are
defined in the Loan Agreement), and any other documents and related hereto or
thereto including review and analysis of and response to any environmental
audits or reports shall be paid by the Mortgagor; (ii) the negotiation of any
amendments or modifications to any of the foregoing documents, instruments or
agreements and the preparation of any and all documents necessary or desirable
to effect such amendments or modifications; and (iv) the enforcement by the
Mortgagee during the term hereof or thereafter of any of the rights or remedies
of the Mortgagee or any participant hereunder or under any of the foregoing
documents, instruments or agreements, including, without limitation, costs and
expenses of collection, whether or not suit is filed with respect thereto and
whether such costs are paid or incurred, or to be paid or incurred, prior to or
after entry of judgment.
Section 4.5. DEFINITIONS. As used herein, the term "Event of Default" shall have
the meaning assigned to such term in the Loan Agreement.
Section 4.6. SURETY PROVISIONS. The Mortgagor hereby:
(1) Waives (i) presentment, demand, notice of nonpayment, protest and
notice of protest on the Indebtedness Secured Hereby; and (ii) notice of
the creation or incurrence of the Indebtedness Secured Hereby;
(2) agrees that the Mortgagee may from time to time, without notice to the
Mortgagor, which notice is hereby waived by the Mortgagor, extend, review
or compromise the Indebtedness Secured Hereby, in whole or in part,
without releasing, extinguishing or affecting in any manner whatsoever the
mortgage or security interest granted hereunder, the foregoing acts being
hereby consented to by the Mortgagor;
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(3) agrees that the Mortgagee shall not be required to first resort for
payment to any other person, entity or corporation, their properties or
estates, or any other right to remedy whatsoever, prior to enforcing this
Mortgage;
(4) agrees that this Mortgage shall be and be construed as a continuing,
absolute and unconditional agreement of the Mortgagor without regard to
(i) the validity, regularity or enforceability of the Indebtedness Secured
Hereby or the disaffirmance thereof in any insolvency or bankruptcy
proceeding relating to the Mortgagor, or (ii) any event or any conduct or
action of the Mortgagee or any other party which might otherwise
constitute a legal or equitable discharge of a surety or of the mortgage
or security interest granted hereunder but for this provision;
(5) agrees that this Mortgage shall remain in full force and effect and be
binding upon the Mortgagor until the Indebtedness Secured Hereby is paid
in full;
(6) agrees that the Mortgagee is expressly authorized to renew, extend,
compromise, exchange, release or surrender, any or all collateral and
security pledged by the Mortgagor or any other party to the Mortgagee to
secure all or any part of the Indebtedness Secured Hereby, with or without
consideration and without notice to the Mortgagor and without in any
manner affecting the mortgage and security interest granted hereunder; and
that the mortgage and security interest granted hereunder shall not be
affected or impaired by any failure, neglect or omission on the party of
the Mortgagee to realize upon the Indebtedness Secured Hereby, or upon any
collateral or security therefor, nor by the taking by the Mortgagee of any
other security agreement or guaranty to secure the Indebtedness Secured
Hereby or any other indebtedness of the Mortgagor to the Mortgagee, nor by
any act or failure to act whatsoever which but for this provision might or
could in law or in equity act to release the mortgage or security interest
granted hereunder;
(7) agrees that the Mortgagor may be joined in any action or proceeding
commenced in connection with or based upon the Indebtedness Secured Hereby
and this Mortgage may be enforced in any such action or proceeding or in
any independent action or proceeding against the Mortgagor shall the
Mortgagor fail to duly and punctually pay any of the principal of or
interest, late charges or prepayment premium, if any, on the Note, without
any requirement that the Mortgagee first assert, prosecute or exhaust any
remedy or claim against any other party;
(8) agrees that no waiver by the Mortgagee of any right or remedy shall be
a waiver of any other right or remedy or of the same right or remedy on a
later occasion;
(9) agrees that no delay or failure by the Mortgagee to exercise any right
or remedy hereunder or under applicable law shall be a waiver of such
right or remedy; and no single or partial exercise by the Mortgagee of any
such right or remedy shall preclude other or further exercise thereof or
the exercise of any other right or remedy at another time; and
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(10) agrees that each remedy of the Mortgagee hereunder is distinct and
cumulative to each other right or remedy under any other document related
hereto, or afforded by law, and may be exercised concurrently or
independently.
IN WITNESS WHEREOF, the Mortgagor has caused this Mortgage to be duly executed
and delivered to the Mortgagee as of the day and year first above written.
XXXXXXXX TECHNOLOGIES
OF MINNESOTA, INC.,
a Minnesota corporation
By:
-------------------------------
-------------------------------
Its:
--------------------------
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this _____ day of _______,
2001, by ___________________, the ______________ of XxxxxXxx Technologies of
Minnesota, Inc., a Minnesota corporation and on behalf of the Corporation.
-------------------------------------
Notary Public
15
EXHIBIT A
(Legal Description)
Parcel 1:
That part of Xxx 0, Xxxxx 0, Xxxxxxx Xxxxxxxxxx Xxxxxxxxxxx, Xxxxx County,
Minnesota, lying Northerly of the following described line:
Commencing at the Southwest corner of Lot 6, in said Block and Addition; thence
North, assumed bearing, along the West line of said Lots 6 and 7, a distance of
214.05 feet to the actual point of beginning of the line to be described; thence
South 86 degrees 18 minutes 55 seconds East, to the East line of said Lot 7 and
there terminating.
Lots 8, 9, 10, 11 and 12, all in Block 1, Xxxxxxx Industrial Development,
according to the duly recorded plat thereof.
Parcel 2:
Lot 6;
That part of Lot 5 lying Northerly of a line described as commencing at the
Southwest corner of said Lot 5; thence on an assumed bearing of North along the
West line of said Lot 5 a distance of 162.64 feet to the point of beginning of
the line to be described; thence North 88 degrees 49 minutes 00 seconds East a
distance of 322.05 feet to the East line of said Lot 5; and said line there
terminating;
And that part of Lot 7 lying Southerly of a line described as commencing at the
Southwest corner of Lot 6; thence on an assumed bearing of North along the West
line of said Lots 6 and 7 a distance of 214.05 feet to the point of beginning of
the line to be described; thence South 86 degrees 18 minutes 55 seconds East a
distance of 313.65 feet to the East line of said Lot 7 and said line there
terminating;
All in Block 1, Xxxxxxx Industrial Development, according to the recorded plat
thereof, Xxxxx County, Minnesota.
Note: The East 25 feet of Lot 5 is Torrens Property.
Certificate of Title No. 31265
EXHIBIT B
(Permitted Encumbrances)
1. Real estate taxes due and payable October 15, 2001 and thereafter.
2. Drainage and utility easements as shown on the recorded plat of Xxxxxxx
Industrial Development dated April 30, 1960, filed May 9, 1960, in Book H,
Page 43.
3. Easement for electric transmission line over a portion of Lot 5 dated
March 6, 1962, filed March 16, 1962, in Book 31 of Miscellaneous Records,
Pages 13-14.
4. Easement for electric transmission line over a portion of Lot 5 dated
December 7, 1962, filed December 17, 1962, in Book 156 of Deeds Pages
209-210.
5. Terms and conditions of a Conditional Use Permit dated January 27, 1983,
filed February 7, 1983, as Document No. 191007.
6. Drainage and utility easements dated September 7, 1993, filed September
10, 1993, as Document No. 320908.
7. Terms and conditions of a Resolution No. R-97-116 approving a lot
split/consolidation adopted September 2, 1997, filed March 13, 1998, as
Document No. 410496.
8. Affidavit regarding location of fuel tank filed July 15, 1991, as Document
No. 284300.
MORTGAGE, SECURITY AGREEMENT,
FIXTURE FINANCING STATEMENT
AND ASSIGNMENT OF LEASES AND RENTS
BY
XXXXXXXX TECHNOLOGIES OF MINNESOTA, INC.
AS MORTGAGOR,
TO
XXXXXX BUSINESS FINANCE CORPORATION
AS MORTGAGEE,
TO SECURE
$950,000 Real Estate Term Note
Dated: March ____, 2001
Tax statements for the real property This instrument was drafted by:
described inthis instrument should
be sent to:
XXXXXXXX TECHNOLOGIES Xxxxxx Business Finance Corporation
OF MINNESOTA, INC. 000 Xxxxxxxxx Xxxxxx
00000 Xxxxxxx Xxxxxx Xxxxx 00xx Xxxxx
Xxxxxx, XX 00000 Xx. Xxxx, XX 00000
THE MAXIMUM PRINCIPAL
AMOUNT SECURED BY THIS
MORTGAGE IS $950,000.00
