Exhibit 10.69
This instrument was prepared by
and after recording return to:
Xxxxxxx X. Elegant, Esq.
Xxxxxx Xxxxxx Zavis
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
SPACE ABOVE THIS LINE FOR RECORDER'S USE.
MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT
AND FIXTURE FILING
THIS MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE
FILING ("MORTGAGE") is made as of the 23 day of March, 2001, by Xxxx Industries,
Incorporated, a Minnesota corporation, whose address is 000 Xxxx Xxxxxxxxx,
Xxxxx, Xxxxxxxxx 00000 (referred to herein as "Mortgagor"), to or for the
benefit of Xxxxxx Financial, Inc., a corporation organized and existing under
the laws of Delaware ("Xxxxxx"), whose address is 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, in its capacity as agent (in such capacity, the
"Agent") under that certain Credit Agreement dated February 27, 1998 by and
among Xxxx, Holdings, Deflecta-Shield Corporation Belmor Autotron Corp., DFM
Corp., Auto Ventshade Company and Smittybilt, Inc. (each a "Borrower" and
collectively, the "Borrowers"), and the other Loan Parties named therein, Xxxxxx
and certain other financial institutions (each a "Lender", and collectively,
"Lenders"), (as amended, restated, supplemented or otherwise modified from time
to time, the "Credit Agreement").
RECITALS
A. Mortgagor is as of the date of delivery hereof the owner of the
title to the parcels of land described on Exhibit A hereof (the "Land") and the
Improvements (as such term is hereinafter defined) located thereon.
B. Mortgagor, the other Loan Parties, Xxxxxx and Lenders are parties to
the Credit Agreement, pursuant to which Lenders have made and may in the future
make term and/or revolving loans and advances and other financial accommodations
to Mortgagor and the other Borrowers as set forth therein.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ENFORCEMENT OF THIS MORTGAGE IN
MINNESOTA IS LIMITED TO A DEBT AMOUNT OF $13,500,000 UNDER CHAPTER 287 OF
MINNESOTA STATUES.
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C. Mortgagor wishes to secure (i) the prompt and complete payment of
all obligations and liabilities of Mortgagor and the other Borrowers under the
Credit Agreement and each of the other Loan Documents (as defined in the Credit
Agreement); (ii) the prompt and complete payment of any additional liabilities
accrued to Agent and Lenders on account of any future payments, advances or
expenditures made by Agent pursuant to this Mortgage, the Credit Agreement, or
any other Loan Document; and (iii) the prompt and complete performance of each
of every covenant, condition, and agreement now or hereafter arising contained
in this Mortgage, the Credit Agreement and each of the other Loan Documents. All
payment obligations of Mortgagor and the other Borrowers under the Credit
Agreement, this Mortgage or any of the other Loan Documents are hereinafter
sometimes collectively referred to as the "Indebtedness" and all other
obligations of Mortgagor and the other Borrowers under the Credit Agreement,
this Mortgage or any of the other Loan Documents are hereinafter sometimes
collectively referred to as the "Obligations". The Indebtedness and the
Obligations are sometimes hereinafter collectively referred to as the
"Liabilities".
NOW, THEREFORE, TO SECURE TO AGENT the repayment of the Indebtedness
and the performance of the Obligations, Mortgagor has executed this Mortgage and
does hereby mortgage, convey, assign, warrant, transfer, pledge and grant a
security interest in and to Agent, for the benefit of the Lenders the following
described property and all proceeds thereof (which property is hereinafter
sometimes collectively referred to as the "Property"):
(a) The real estate described on Exhibit A hereto (the "Land");
(b) All buildings and improvements of every nature whatsoever now or
hereafter situated on the Land and owned by Mortgagor (the "Improvements"), and
all machinery, equipment, mechanical systems and other personal property now or
hereafter owned by Mortgagor and used in connection with the operation of the
Improvements;
(c) All easements and appurtenances now or hereafter in any way
relating to the Land and/or Improvements or any part thereof;
(d) All agreements affecting the use, enjoyment or occupancy of the
Land and/or Improvements now or hereafter entered into (the "Leases"), including
any and all guaranties of such Leases, and the immediate and continuing right to
collect all rents, income, security deposits, tax, insurance and replacement
reserve deposits, receipts, royalties, profits, issues, service reimbursements,
fees, accounts receivables, revenues and prepayments of any of the same
(including termination, cancellation, option and similar payments) from or
related to the Land and/or Improvements from time to time accruing under the
Leases and/or the operation of the Land and/or Improvements (the "Rents"),
reserving to Mortgagor, however, so long as no "Event of Default" (hereinafter
defined) has occurred hereunder, a revocable license to receive and apply the
Rents in accordance with the terms and conditions of Paragraph 13 of this
Mortgage;
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(e) All claims, demands, judgments, insurance proceeds, awards of
damages and settlements hereafter made resulting from the taking of the Land
and/or the Improvements or any part thereof under the power of eminent domain,
or for any damage (whether caused by such taking, by casualty or otherwise) to
the Land and/or the Improvements or any part thereof;
(f) To the extent assignable, all now or hereafter existing management
contracts and all permits, certificates, licenses, agreements, approvals,
entitlements and authorizations, however characterized, issued or in any way
furnished for the acquisition, construction, operation and use of the Land,
Improvements and/or Leases, including building permits, environmental
certificates, licenses, certificates of operation, warranties and guaranties;
(g) All of Mortgagor's rights in and to all trademarks, tradenames,
assumed names, telephone numbers and listing rights and other rights and
interests in and to the names and marks used by Mortgagor in connection with the
Land and/or Improvements, and all books and records and all other general
intangibles relating to the ownership or operation of the Land and/or
Improvements; and
(h) Any monies on deposit with or for the benefit of Agent or any of
the Lenders, including deposits for the payment of real estate taxes, insurance
premiums and any other reserves held by Agent, any of the Lenders or their
agents.
TO HAVE AND TO HOLD the Property and all parts thereof, together with
the rents, issues, profits and proceeds thereof, unto Agent to its own proper
use, benefit, and advantage forever, subject, however, to the terms, covenants,
and conditions herein.
At no time shall the principal amount of the Indebtedness secured
hereby, not including sums advanced in accordance herewith to protect the
security of this Mortgage, exceed Thirteen Million Five Hundred Thousand Dollars
($13,500,000).
Mortgagor covenants and agrees with Agent as follows:
1. PAYMENT OF INDEBTEDNESS; PERFORMANCE OF OBLIGATIONS. Mortgagor shall
pay when due the Indebtedness and shall perform all Obligations, all in
accordance with the terms of the Credit Agreement..
2. TAXES AND OTHER OBLIGATIONS. Mortgagor shall pay, when due, and
before any interest, collection fees or penalties shall accrue, all taxes,
assessments, fines, impositions and other charges and obligations, including
charges and obligations for any present or future repairs or improvements made
on the Property, or for any other goods, services or utilities furnished to the
Property, which may become a lien on or charge against the Property prior to
this Mortgage, subject, however, to Mortgagor's right to contest such tax lien
or charge on the terms provided in Section 2.7 of the Credit Agreement. Should
Mortgagor fail to make such payments, Agent may, at its option and at
Mortgagor's expense, pay the amounts due for the account of Mortgagor and all
amounts advanced shall be included in the Indebtedness. Upon the request of
Agent, Mortgagor shall immediately furnish to Agent all notices of amounts due
and receipts evidencing payment. Mortgagor shall promptly notify Agent of any
lien on all or any part of the Property and shall promptly discharge any
unpermitted lien or encumbrance.
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3. RESERVE/TENANT IMPROVEMENTS AND LEASING RESERVE. Mortgagor shall,
upon Agent's written request after the occurrence of an Event of Default, pay to
Agent, at the time of and in addition to the monthly installments of principal
and/or interest due under the Credit Agreement, a sum equal to 1/12 of the
amount estimated by Agent to be sufficient to enable Agent to pay at least 30
days before they become due and payable, all taxes, assessments and other
similar charges levied against the Property and all insurance premiums relating
to Mortgagor and the Property as determined by Agent (the "PROPERTY TAX AND
INSURANCE RESERVE"). So long as Agent has not accelerated the maturity of the
Indebtedness, and provided that Mortgagor shall have delivered to Agent a copy
of the tax xxxx or insurance premium xxxx, as the case may be, and sufficient
funds on deposit from Mortgagor for the purpose of paying such tax xxxx and/or
insurance premium xxxx, Agent shall apply the sums to pay such tax items and/or
insurance premiums, as the case may be. These sums may be commingled with the
general funds of Agent, and no interest shall be payable thereon nor shall these
sums be deemed to be held in trust for the benefit of Mortgagor. If such amount
on deposit with Agent is insufficient to fully pay such tax items and/or
insurance premiums, as the case may be, Mortgagor shall, within ten (10) days
following notice at any time from Agent, deposit such additional sum as may be
required for the full payment of such tax items and/or insurance premiums, as
the case may be. Mortgagor hereby grants Agent a first priority security
interest in such funds and Mortgagor shall execute any other documents and take
any other actions necessary to provide Agent with such a perfected security
interest in such funds. Upon the acceleration of the maturity of the
Indebtedness, the moneys then remaining on deposit with Agent shall, at Agent's
option, be applied against the Indebtedness. The obligation of Mortgagor to pay
such tax items and/or insurance premiums is not affected or modified by the
provisions of this paragraph.
4. USE OF PROPERTY.Mortgagor shall not initiate or acquiesce in a
change in the zoning classification of the Property. Mortgagor shall not grant
easements burdening the Property (other than customary utility easements
necessary for the use of the Property) without Agent's prior written consent,
which consent shall not be unreasonably withheld or delayed. Mortgagor shall be
allowed to lease the Property on a month-to-month basis under commercial Leases.
5. INSURANCE AND CONDEMNATION. Mortgagor shall keep the Improvements
insured, and shall maintain general liability coverage and such other coverages
requested by Agent, by carrier(s), in amounts and in form at all times
satisfactory to Agent, which carrier(s), amounts and form shall not be changed
without the prior written consent of Agent, which shall not be unreasonably
withheld or delayed. All such policies of insurance shall be in compliance with
the requirements of Section 2.2 of the Credit Agreement. Unless Mortgagor
provides Agent with appropriate evidence of the insurance coverage required by
this Mortgage, Agent may purchase insurance at Mortgagor's expense to protect
Agent's interests in the Property and to maintain the insurance required by this
Mortgage. This insurance may, but need not, protect Mortgagor's interests. The
coverage purchased by Agent may not pay any claim made by Mortgagor or any claim
that is made against Mortgagor in connection with the Property or any required
insurance policy. Mortgagor may later cancel any insurance purchased by Agent,
but only after providing Agent with appropriate evidence that Mortgagor has
obtained insurance as required by this Mortgage. If Agent purchases insurance
for the Property or insurance otherwise required by this Mortgage, Mortgagor
will be responsible for the costs of that insurance, including interest and
other charges imposed by Agent in connection with the placement of the
insurance, until the
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effective date of the cancellation or expiration of the insurance. The costs of
the insurance may be added to the Indebtedness. The costs of the insurance may
be more than the cost of insurance Mortgagor is able to obtain on its own.
In case of loss or damage by fire or other casualty, Mortgagor shall
give immediate written notice thereof to the insurance carrier(s) and to Agent.
Agent is authorized and empowered to make or file proofs of loss or damage (in
each case only so long as such loss or damages is equal to or greater than
$100,000.00) and to settle and adjust any claim under insurance policies which
insure against such risks, or to direct Mortgagor, in writing, to agree with the
insurance carrier(s) on the amount to be paid in regard to such loss.
Mortgagor shall immediately notify Agent of any action or proceeding
relating to any condemnation or other taking, whether direct or indirect, of the
Property, or part thereof, and Mortgagor shall appear in and prosecute any such
action or proceeding unless otherwise directed by Agent in writing. Mortgagor
authorizes Agent, at Agent's option, as attorney-in-fact for Mortgagor, to
commence, appear in and prosecute, in Agent's or Mortgagor's name, any action or
proceeding relating to any condemnation or other taking of the Property, whether
direct or indirect, and to settle or compromise any claim in connection with
such condemnation or other taking, provided such claim is for an amount equal to
or greater than $50,000.00. The proceeds of any award, payment or claim for
damages, direct or consequential, in connection with any condemnation or other
taking, whether direct or indirect, of the Property, or part thereof, or for
conveyances in lieu of condemnation, are hereby assigned to and shall be paid to
Agent in accordance with Section 1.5(c) of the Credit Agreement.
Subject to Sections 2.2 and 1.5(c) of the Credit Agreement and provided
no Event of Default then exists hereunder, the net insurance proceeds and net
proceeds of any condemnation award (in each case after deduction only of Agent's
reasonable costs and expenses, if any, in collecting the same, the "Net
Proceeds") shall be made available for the restoration or repair of the Property
if, in Agent's sole discretion (a) restoration or repair and the continued
operation of the Property is economically feasible, (b) the value of Agent's
security is not reduced, (c) the loss or condemnation, as applicable, does not
occur in the six (6) month period preceding the stated maturity date of the
Indebtedness and Agent's independent consultant certifies that the restoration
of the Property can be completed at least ninety (90) days prior to the maturity
date of the Indebtedness, and (d) Mortgagor deposits cash with Agent in an
amount which Agent, in its sole discretion, determines is necessary, in addition
to the Net Proceeds to pay in full the cost of the restoration or repair
(Mortgagor's deposit shall be disbursed prior to any disbursement of Net
Proceeds held by Agent). Notwithstanding the foregoing, it shall be a condition
precedent to any disbursement of Net Proceeds held by Agent hereunder that Agent
shall have approved (x) all plans and specifications for any proposed repair or
restoration, (y) the construction schedule and (z) the architect's and general
contractor's contract for all restoration that exceeds $50,000.00 in the
aggregate. Agent may establish other conditions it deems reasonably necessary to
assure the work is fully completed in a good and workmanlike manner free of all
liens or claims by reason thereof. Mortgagor's deposits made pursuant to this
paragraph shall be used before the Net Proceeds for such restoration or repair.
If the Net Proceeds are made available for restoration or repair, such work
shall be completed by Mortgagor in a diligent fashion, and in compliance with
all applicable laws, rules and regulations. At Agent's option, the Net Proceeds
shall be disbursed pursuant to a construction escrow acceptable to Agent. If
following the final payments for the
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completion of such restoration or repair there are any Net Proceeds remaining,
such proceeds shall be paid (i) to Mortgagor to the extent Mortgagor was
required to make a deposit pursuant to this paragraph, (ii) then to Agent to be
applied to the Indebtedness, whether or not due and payable until paid in full,
and (iii) then to Mortgagor. If an Event of Default then exists, or any of the
conditions set forth in subparagraphs (a) through (d) of this Paragraph 5 have
not been met or satisfied, the Net Proceeds shall be applied to the
Indebtedness, whether or not due and payable, with any excess paid to Mortgagor.
6. PRESERVATION AND MAINTENANCE OF PROPERTY. Mortgagor (a) shall not
commit waste or permit impairment or deterioration of the Property; (b) shall
not abandon the Property; (c) shall keep the Property in good repair and restore
or repair promptly, in a good and workmanlike manner, all or any part of the
Property to the equivalent of its original condition, ordinary wear and tear
excepted, or such other condition as Agent may approve in writing, upon any
damage or loss thereto in accordance with the terms of Paragraph 5; (d) shall
comply with all laws, ordinances, regulations and requirements of any
governmental body applicable to the Property; (e) shall provide for management
of the Property by Mortgagor; and (f) shall give notice in writing to Agent of
and, unless otherwise directed in writing by Agent, appear in and defend any
action or proceeding purporting to affect the Property, the security granted by
the Loan Documents or the rights or powers of Agent. Neither Mortgagor nor any
tenant or other person shall remove, demolish or alter any Improvement or any
fixture, equipment, machinery or appliance in or on the Land and owned or leased
by Mortgagor except when incident to the replacement of fixtures, equipment,
machinery and appliances with items of like kind.
7. PROTECTION OF AGENT'S SECURITY. If Mortgagor fails to pay the
Indebtedness or perform the Obligations, or if any action or proceeding is
commenced which could adversely affect the Property or Agent's interest therein,
then Agent, at Agent's option, may make such appearances, disburse such sums and
take such action as Agent deems necessary, in its sole discretion, to protect
the Property or Agent's interest therein, including entry upon the Property to
make repairs and perform environmental tests and studies. Any amounts disbursed
by Agent pursuant to this Paragraph 7 (including attorneys' costs and expenses),
shall bear interest thereon at the rate of interest applicable after an Event of
Default under the Credit Agreement from the date of disbursement, shall become
additional Indebtedness of Mortgagor secured by the Loan Documents and shall be
due and payable on demand. Nothing contained in this Paragraph 7 shall require
Agent to incur any expense or take any action hereunder.
8. INSPECTION. Subject to the rights of tenants under Agent approved
Leases, Agent and its agents and designees (including any independent
consultants retained by Agent) may, at Mortgagor's expense, make or cause to be
made reasonable entries upon and inspections of the Property, including, upon
the occurrence of an Event of Default, for performing any environmental
inspections and testing of the Property, and inspections of Mortgagor's books,
records, contracts, drawings and plans at all reasonable times upon reasonable
advance notice, which notice may be given in writing or verbally. Mortgagor
shall cooperate with Agent and its agents and designees with respect to all such
inspections, including any related to the sale or potential sale of all or any
portion of the Loans by Agent or the Lenders and any securitization or potential
securitization involving the Loans.
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9. BOOKS AND RECORDS. Mortgagor shall keep and maintain at all times at
Mortgagor's address stated above, or such other place as Agent may approve in
writing, complete and accurate books of accounts and records adequate to reflect
correctly the results of the operation of the Property and copies of all written
contracts, Leases and other instruments affecting the Property.
10. FINANCIAL STATEMENTS. Mortgagor shall furnish or cause to be
furnished to Agent, such financial reports and other information required by and
described in the Credit Agreement. Mortgagor shall also furnish at any other
time upon Agent's request, (a) a rent roll for the Property, showing the name of
each tenant, and for each tenant, the space occupied, the lease expiration date,
the rent payable, the rent paid to date, and the security deposit being held for
such tenant, (b) a leasing activity report for the Property during such fiscal
quarter, (c) a capital expenditure report indicating the type and amount of each
capital expenditure made during such fiscal quarter, and (d) any other
information that Agent may reasonably require. All of the foregoing shall be
certified as true and complete by Mortgagor.
11. REPRESENTATIONS AND COVENANTS.
(a) Mortgagor represents that it is a corporation duly organized,
existing and in good standing under the laws of its state of incorporation, that
it is duly qualified and in good standing under the laws of the state where the
Land is located, and that the execution and delivery of the Loan Documents and
the performance of the obligations thereunder are within Mortgagor's corporate
powers, have been duly authorized by all necessary action of its board of
directors, and do not contravene the terms of its articles of incorporation or
by-laws.
(b) Mortgagor represents that (i) the execution and delivery of the
Loan Documents, the payment of the Indebtedness, and the performance of the
Obligations do not violate any law or conflict with any agreement or court order
by which Mortgagor is bound, (ii) no consent or approval of any governmental
authority or any third party is required for the execution or delivery of the
Loan Documents, the payment of the Indebtedness, and the performance of the
Obligations, and (iii) the Loan Documents are valid and binding agreements,
enforceable in accordance with their terms.
(c) Mortgagor represents that (i) it is lawfully seized with fee simple
title in the estate hereby conveyed; (ii) it has the right to mortgage, convey,
assign and grant a first security interest in the Property; and (iii) the
Property is unencumbered (other than Agent's liens), and Mortgagor will warrant
and defend title to the Property against all claims and demands, subject to
matters, easements and restrictions listed in a schedule of exceptions attached
hereto as Exhibit B.
(d) Mortgagor represents and covenants that (i) all material licenses,
permits, approvals, franchises, and certificates, including certificates of
completion and occupancy permits, required by law or regulation for the
ownership and operation of the Property have been obtained and are and shall
remain in full force and effect; and (ii) the use and occupancy of the Property
is and shall remain in compliance with all applicable laws.
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(e) Mortgagor represents that all of the improvements on the Land lie
wholly within the boundaries of any building line restrictions relating to the
Land and no improvements located on adjoining lands encroach upon the Land so as
to affect the value or marketability of the Property.
(f) None of Mortgagor, any Loan Party, or any other holder of a direct
or indirect legal or beneficial interest in Mortgagor is or will be, held,
directly or indirectly, by a "foreign corporation," "foreign partnership,"
"foreign trust," "foreign estate," "foreign person," "affiliate" of a "foreign
person" or a "United States intermediary" of a "foreign person" within the
meaning of IRC Sections 897 and 1445, the Foreign Investments in Real Property
Tax Act of 1980, the International Foreign Investment Survey Act of 1976, the
Agricultural Foreign Investment Disclosure Act of 1978, the regulations
promulgated pursuant to such acts or any amendments to such acts.
(g) None of Mortgagor or any Loan Party is insolvent, and there has
been no (i) assignment made for the benefit of the creditors of any of them,
(ii) appointment of a receiver for any of them or for the properties of any of
them, or (iii) any bankruptcy, reorganization, or liquidation proceeding
instituted by or against any of them.
(h) The proceeds evidenced by the Loans will be used by Mortgagor
solely and exclusively for proper business purposes and will not be used for the
purchase or carrying of registered equity securities within the purview and
operation of any regulation issued by the Board of Governors of the Federal
Reserve System or for the purpose of releasing or retiring any indebtedness
which was originally incurred for any such purpose.
(i) Mortgagor represents and covenants that all Leases of space in the
Property existing as of the date hereof are in writing.
(j) Mortgagor represents and covenants that it has satisfied its
obligations under its Development Agreements with the City of Anoka, Minnesota.
12. LEASES OF THE PROPERTY/ABSOLUTE ASSIGNMENT, LICENSE TO RECEIVE AND
APPLY RENTS. The parties intend that this Mortgage grants a present, absolute,
and unconditional assignment of the Rents. Such assignment and grant shall
continue in effect until the Indebtedness is paid in full and all Obligations
are fully satisfied. Subject to the provisions set forth herein and provided
there is no Event of Default, Agent grants to Mortgagor a revocable license to
enforce the Leases and collect the Rents as they become due (excluding, however,
any Lease termination, cancellation, option or similar payments, which Mortgagor
agrees shall be held in trust and turned over to Agent for credit to principal
under the Loans) and Mortgagor shall hold the same, in trust, to be applied
first to the payment of all impositions, levies, taxes, assessments and other
charges upon the Property, second to maintenance of insurance policies upon the
Property required hereby, third to the expenses of Property operations,
including maintenance and repairs required hereby, fourth to the payment of that
portion of the Indebtedness then due and payable, and fifth, the balance, if
any, to or as directed by Mortgagor. Mortgagor shall deliver such Rents to Agent
as are necessary for the payment of principal, interest and other sums payable
under the Loan Documents as such sums become due.
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(a) Upon the occurrence of an Event of Default, Mortgagor's license to
collect the Rents set forth above shall immediately cease and terminate. Upon or
at the time during the continuance of an Event of Default, including but not
limited to failure of the Mortgagor to pay any of the items set forth in
Paragraph 12(c)(i)-(v) below, or if any material representation or warranty
herein proves to be untrue, then the Agent, without regard to waste, adequacy of
the security or solvency of the Mortgagor, may declare all Indebtedness
immediately due and payable and may, at its option, without notice:
(i) In person or by Agent, with or without taking possession
of or entering the Property, with or without bringing any action or
proceeding, give, or require the Mortgagor to give, notice to the
tenants under the Leases authorizing and directing the tenants to pay
all Rents directly to the Agent; collect all of the Rents; enforce the
payment thereof and exercise all of the rights of the Mortgagor under
the Leases and all of the rights of the Agent hereunder; and may enter
upon, take possession of, manage and operate the Property, or any part
thereof; may cancel, enforce or modify the Leases, and fix or modify
Rents, and do any acts which the Agent deems proper to protect the
security hereof; and/or
(ii) Apply for appointment of a receiver in accordance with
Paragraph 20 hereof and the statutes and law made and provided for,
which receivership the Mortgagor hereby consents to, who shall collect
the Rents; manage the Property so as to prevent waste; execute Leases
within or beyond the period of receivership; perform the terms of this
Mortgage and apply the Rents as hereinafter provided.
(b) The entering upon and taking possession of such Property, the
appointment of a receiver, the collection of such Rents and the application
thereof as aforesaid shall not cure or waive any default or waive, modify or
affect notice of default under the Mortgage or invalidate any act done pursuant
to said notice, nor in any way operate to prevent the Agent from pursuing any
remedy which now or hereafter it may have under the terms and conditions of this
Mortgage, or the Loan Documents, nor shall in any way be deemed to constitute
Agent a mortgagee-in-possession. The rights and powers of the Agent hereunder
shall remain in full force and effect both prior to and after any foreclosure of
this Mortgage and any sale pursuant thereto and until expiration of the period
of redemption from said sale, regardless of whether a deficiency remains from
said sale. The purchaser at any foreclosure sale, including the Agent, shall
have the right, at any time and without limitation as provided in Minn. Stat.
Section 582.03, to advance money to any receiver appointed hereunder to pay any
part or all of the items which the receiver would otherwise be authorized to pay
if cash were available from the Property and the sum so advanced, with interest
at the rate then in effect under the terms of the Credit Agreement, shall be a
part of the sum required to be paid to redeem from any foreclosure sale. The
rights under this Paragraph 12(b) shall in no way be dependent upon and shall
apply without regard to whether the Property is in danger of being lost,
materially injured or damaged or whether the Property is adequate to discharge
the Indebtedness.
(c) Any Rents received shall be applied in the following order:
(i) to payment of all fees of any receiver appointed
hereunder,
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(ii) to application of the tenant's security deposits as
required by Minn. Stat. Section 504.20,
(iii) to payment when due of prior or current real estate
taxes or special assessments with respect to the Property or, if the
Mortgage so requires, to the periodic escrow for payment of the taxes
or special assessments then due,
(iv) to payment when due of premiums for insurance of the type
required by the Mortgage or, if the Mortgage so requires, to the
periodic escrow for the payment of premiums then due, and
(v) to payment of all expenses for normal maintenance of the
Property.
Any Rents remaining after application of the above items shall
be applied to the remaining Obligations as determined by Agent in its sole
discretion. If the Property shall be foreclosed and sold pursuant to a
foreclosure sale, then:
(vi) if the Agent is the purchaser at the foreclosure sale,
the Rents shall be paid to the Agent to be applied to the extent of any
deficiency remaining after the sale, the balance to be retained by the
Agent, and if the Property be redeemed by the Mortgagor or any other
party entitled to redeem, to be applied as a credit against the
redemption price with any remaining excess Rents to be paid to the
Mortgagor, provided, if the Property not be redeemed, any remaining
excess Rents to belong to the Agent, whether or not a deficiency
exists; and
(vii) if the Agent is not the purchaser at the foreclosure
sale, the Rents shall be paid to the Agent to be applied first, to the
extent of any deficiency remaining after the sale, the balance to be
retained by the purchaser, and if the Property be redeemed by the
Mortgagor or any other party entitled to redeem, to be applied as a
credit against the redemption price with any remaining excess Rents to
be paid to the Mortgagor, provided, if the Property not be redeemed any
remaining excess Rents shall be paid first to the purchaser at the
foreclosure sale in an amount equal to the interest accrued upon the
sale price pursuant to Minn. Stat. Section 580.23 or Section 581.10,
then to the Agent to the extent of any deficiency remaining unpaid and
the remainder to the purchaser.
Mortgagor hereby irrevocably appoints Agent and its successor
and assigns as its agent and attorney-in-fact, which appointment is coupled with
an interest, to exercise any rights or remedies under this Paragraph 12 and to
execute and deliver during the term of this Mortgage such instruments as the
Agent may deem necessary to make the assignment of Rents described in this
Paragraph 12 and any other assignment effective. Notice of acceptance of the
assignment set forth in this Paragraph 12 is hereby waived.
Mortgagor shall comply with and observe Mortgagor's obligations as
landlord under all Leases. Mortgagor shall not, without Agent's prior written
consent, which shall not be unreasonably withheld or delayed, execute, modify,
amend, surrender or terminate any commercial Lease; provided, however, that
Borrower shall be permitted to enter into month-to-month commercial Leases. All
Leases of space in the Property and amendments thereto shall be on the form of
lease previously approved by Agent with tenants and for a use acceptable to
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Agent. All commercial Leases of space in the Property executed or renewed after
the date hereof must be approved by Agent (provided, that month-to-month
commercial Leases need not be approved by Agent) prior to the execution thereof
by Mortgagor and shall provide for rental rates comparable to existing local
market rates and shall be arm's length transactions. In addition, in the event
that any Mortgagor form lease does not already contain such a provision,
Mortgagor shall add an automatic attornment provision to such form lease whereby
in the event of a foreclosure, the tenant automatically shall recognize the
successor owner as landlord and such tenant shall have no right to terminate its
lease in the event of such foreclosure. Mortgagor shall not delete such
provision from any lease without Agent's prior written approval. Mortgagor shall
not be authorized to enter into any ground lease of the Property without Agent's
prior written approval. If Agent consents to any new Lease of space in the
Property or the renewal of any existing Lease of space in the Property, at
Agent's request, Mortgagor shall cause the tenant thereunder to execute a
subordination, non-disturbance and attornment agreement in form and substance
reasonably satisfactory to Agent contemporaneously with the execution of such
Lease (other than with respect to month-to-month commercial Leases). Mortgagor,
at Agent's request, shall furnish Agent with executed copies of all Leases. All
Leases other than for space in the Property shall be terminable on not less than
sixty (60) days' notice, unless approved in writing by Agent prior to
Mortgagor's execution thereof.
This Mortgage shall not be deemed to impose upon Agent any of the
obligations or duties of the landlord or Mortgagor provided in any Lease.
Mortgagor hereby acknowledges and agrees: (i) Mortgagor is and will remain
liable under the Leases to the same extent as though this Mortgage had not been
made; and (ii) Agent has not by this Mortgage assumed any of the obligations of
Mortgagor under the Leases, except as to such obligations which arise after such
time as Agent shall have assumed full ownership or control of the Property. This
Mortgage shall not make Agent responsible for the control, care, management, or
repair of the Property or any personal property or for the carrying out of any
of the terms of the Leases. Agent shall not be liable in any way for any injury
or damage to person or property sustained by any person or persons, firm, or
corporation in or about the Property unless incurred as a direct result of
Agent's gross negligence or willful misconduct.
13. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTEREST IN MORTGAGOR;
ASSUMPTION. Except as provided in the Credit Agreement, Mortgagor shall not sell
or transfer all or any part of the Property, or any interest therein.
14. NO ADDITIONAL LIENS. Except as expressly permitted by the Credit
Agreement, Mortgagor covenants not to execute any mortgage, security agreement,
assignment of leases and rents or other agreement granting a lien (except the
liens granted to Agent by the Loan Documents) or take or fail to take any other
action which would result in an encumbrance or a lien against the Property or
the interest of Mortgagor in the Property without the prior written consent of
Agent.
15. MORTGAGOR AND LIEN NOT RELEASED. Without affecting the liability of
Mortgagor or any other person liable for the payment of the Indebtedness, and
without affecting the lien or charge of this Mortgage as security for the
payment of the Indebtedness, Agent may, from time to time and without notice to
any junior lien holder or holder of any right or other interest in and to the
Property: (a) release any person so liable, (b) waive or modify any provision of
this
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Mortgage or the other Loan Documents or grant other indulgences, (c) release all
or any part of the Property, (d) take additional security for any obligation
herein mentioned, (e) subordinate the lien or charge of this Mortgage, (f)
consent to the granting of any easement, or (g) consent to any map, plat or plan
of the Property.
16. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. This Mortgage shall
constitute a security agreement pursuant to the Uniform Commercial Code for any
of the items specified herein as part of the Property which, under applicable
law, may be subject to a security interest pursuant to the Uniform Commercial
Code, and Mortgagor hereby grants Agent a security interest in said items. Any
reproduction of this Mortgage or of any other security agreement or financing
statement shall be sufficient as a financing statement. In addition, Mortgagor
agrees to execute and deliver to Agent any financing statements, as well as
extensions, renewals and amendments thereof, and reproductions of this Mortgage
in such form as Agent may require to perfect a security interest with respect to
said items. Mortgagor shall pay all costs of filing such financing statements
and any extensions, renewals, amendments and releases thereof, and shall pay all
reasonable costs and expenses of any record searches for financing statements
Agent may reasonably require. Agent shall have the remedies of a secured party
under the Uniform Commercial Code.
As to those items of Property described in this Mortgage that
are, or are to become fixtures related to the Land and Improvements mortgaged
herein, and all products and proceeds thereof, it is intended as to those items
that THIS MORTGAGE SHALL BE EFFECTIVE AS A FINANCING STATEMENT FILED AS A
FIXTURE FILING from the date of it filing in the real estate records of the
County where the Property is situated. The name of the record owner of said real
estate is Mortgagor as set forth on page one to this Mortgage. Information
concerning the security interest created by this instrument may be obtained from
Agent, as secured party, at its address as set forth on page one of this
Mortgage. The address of Mortgagor, as debtor, is also set forth on page one of
this Mortgage. This document covers goods which are or are to become fixtures.
Mortgagor's Federal Tax Identification Number is 00-0000000 (Xxxx) and
00-0000000 (Holdings).
17. EVENTS OF DEFAULT; ACCELERATION OF INDEBTEDNESS; REMEDIES. The
occurrence of an "Event of Default" under and as defined in the Credit Agreement
shall constitute an "Event of Default" under this Mortgage. Upon the occurrence
of an Event of Default, the Indebtedness, at the option of the Agent, shall
become immediately due and payable without notice to Mortgagor, and Agent shall
be entitled to all of the rights and remedies provided in the Credit Agreement
and the other Loan Documents or at law or in equity. Each remedy provided in the
Credit Agreement and the other Loan Documents is distinct and cumulative to all
other rights or remedies under the Credit Agreement and the other Loan Documents
or afforded by law or equity, and may be exercised concurrently, independently,
or successively, in any order whatsoever.
18. ENTRY; FORECLOSURE; REMEDIES. Upon the occurrence of an Event of
Default (a) Mortgagor, upon demand of Agent, shall forthwith surrender to Agent
the actual possession, or to the extent permitted by law, Agent itself, or by
such officers or agents as it may appoint, may enter and take possession of all
or any part of the Property, and may exclude Mortgagor and its agents and
employees wholly therefrom, and may have joint access with Mortgagor to the
books,
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papers and accounts of Mortgagor; and (b) foreclose if Mortgagor shall for any
reason fail to surrender or deliver the Property or any part thereof after such
demand by Agent, Agent may obtain a judgment or decree conferring on Agent the
right to immediate possession or requiring the delivery to Agent of the
Property, and Mortgagor specifically consents to the entry of such judgment or
decree. Upon every such entering upon or taking of possession, Agent may hold,
store, use, operate, manage and control the Property and conduct the business
thereof. Agent shall have no liability for any loss, damage, injury, cost or
expense resulting from any action or omission by it or its representatives which
was taken or omitted in good faith.
When the Indebtedness or any part thereof shall become due, whether by
acceleration or otherwise, Agent may, either with or without entry or taking
possession as herein provided or otherwise, proceed by suit or suits at law or
in equity or by any other appropriate proceeding or remedy to (a) enforce
payment of the Indebtedness or the performance of any term, covenant, condition
or agreement of Mortgagor under any of the Loan Documents; (b) foreclose this
Mortgage by judicial proceedings or by advertisement with full authority to sell
the Property at public auction and convey the same to the purchaser in fee
simple, either in one parcel or separate lots and parcels, all in accordance
with and in the manner prescribed by law, and out of the proceeds arising from
sale and foreclosure to retain the principal, prepayment fees, and interest due
under the Credit Agreement and the other Loan Documents and all other
Indebtedness, together with all sums of money as Agent shall have been expenses
or advanced pursuant to this Mortgage or pursuant to statute, together with
interest thereon as herein provided, and all reasonable costs and expenses of
such foreclosure, including lawful attorneys' fees with the balance, if any due,
due to be paid to the person entitled thereto by law; and/or (c) pursue any
other right or remedy available to it under or by the law and decisions of the
State in which the Property is located. The failure to join any tenant or
tenants of the Property as a party defendant in any foreclosure action or the
failure of any such order or judgment to foreclose their rights shall not be
asserted by the Mortgagor as a defense in any civil action instituted to collect
the Indebtedness, or any part thereof, any statute or rule of law at any time
existing to the contrary notwithstanding.
Upon any foreclosure sale, Agent may bid for and purchase the Property
and shall be entitled to apply all or any part of the Indebtedness as a credit
to the purchase price.
Upon the occurrence of an Event of Default, then, without notice to or
the consent of Mortgagor, Agent shall be entitled to exercise all of the rights
and remedies contained in this Mortgage or in any other Loan Document or
otherwise available at law or in equity including the right to do any one or
more of the following:
(a) To enter upon, take possession of and manage the Property for the
purpose of collecting the Rents;
(b) To require Mortgagor to hold all Rents collected in trust for the
benefit of Agent;
(c) Dispossess by the usual summary proceedings any Tenant defaulting
in the payment of Rent to Mortgagor;
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(d) Lease the Property or any part thereof;
(e) Repair, restore, and improve the Property;
(f) Apply the Rent after payment of Property expenses as determined by
Agent to Mortgagor's Indebtedness under the Loan Documents; and
(g) Apply to any court of competent jurisdiction for specific
performance of this Mortgage, an injunction against the violation hereof and/or
the appointment of a receiver.
Mortgagor understands and agrees that if an Event of Default
shall occur, Agent has the right, INTER ALIA, to foreclose this Mortgage by
advertisement pursuant to Minn. Stat. Chapter 580, as hereafter amended, or
pursuant to any similar or replacement statute hereafter enacted; that if Agent
elects to foreclose by advertisement, it may cause the Property or any part
thereof to be sold at public auction; that notice of such sale must be published
for six (6) successive weeks at least once a week in a newspaper of general
circulation, and that no personal notice is required to be served upon
Mortgagor. Mortgagor further understands that upon the occurrence of an Event of
Default, Agent may also elect its rights under the Uniform Commercial Code and
take possession of the non-real estate items of the Property and dispose of the
same by sale or otherwise in one or more parcels, provided that at least ten
(10) days' prior notice of such disposition must be given, all as provided for
by the Uniform Commercial Code, as hereinafter amended or by any similar or
replacement statute hereafter enacted. Mortgagor further understands that under
the Constitution of the United States and the Constitution of the State of
Minnesota it may have the right to notice and hearing before the Property may be
sold and that the procedure for foreclosure by advertisement described above
does not insure that notice will be given to Mortgagor and neither said
procedure for foreclosure by advertisement, nor the Uniform Commercial Code
requires any hearing or other judicial proceeding. MORTGAGOR HEREBY EXPRESSLY
CONSENTS AND AGREES THAT THE PROPERTY MAY BE FORECLOSED PURSUANT TO THE UNIFORM
COMMERCIAL CODE, ALL AS DESCRIBED ABOVE. MORTGAGOR ACKNOWLEDGES THAT IT IS
REPRESENTED BY LEGAL COUNSEL; THAT BEFORE SIGNING THIS DOCUMENT THIS SECTION AND
MORTGAGOR'S CONSTITUTIONAL RIGHTS WERE FULLY EXPLAINED BY SUCH COUNSEL AND THAT
MORTGAGOR UNDERSTANDS THE NATURE AND EXTENT OF THE RIGHTS WAIVED HEREBY AND THE
EFFECT OF SUCH WAIVER.
EXPENDITURES AND EXPENSES. In any civil action to foreclose the lien
hereof or otherwise enforce Agent's rights, there shall be allowed and included
as additional Indebtedness in the order or judgment for foreclosure and sale or
other order all reasonable expenditures and expenses which may be paid or
incurred by or on behalf of Agent, including attorneys' fees, costs and
expenses, receiver's fees, costs and expenses, appraiser's fees, engineers'
fees, outlays for documentary and expert evidence, stenographers' charges,
publication costs, and costs (which may be estimates as to items to be expended
after entry of said order or judgment) of procuring all such abstracts of title,
title searches and examination, title insurance policies, Torrens' Certificates
and similar data and assurances with respect to the title as Agent may deem
reasonably necessary either to prosecute such civil action or to evidence to
bidders at any sale which may be had pursuant to such order or judgment the true
condition of the title to, or the
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value of, the Property (said expenditures and expenses are hereinafter
collectively referred to as the "Reimbursable Expenses"). All Reimbursable
Expenses, and such reasonable costs, expenses and fees as may be incurred by
Agent at any time or times hereafter in the protection of the Property, in
maintaining required insurance, in reviewing and/or granting any request for
consent or approval relating to the Loan Documents or the Property, in enforcing
the Obligations, and/or the maintenance of the lien established by any of the
Loan Documents, including accountants' and attorneys' fees, costs and expenses
in any advice, litigation, or proceeding affecting the Loan Documents or the
Property, whether instituted by Agent, Mortgagor or any other party, or in
preparation for the commencement or defense of any action or proceeding or
threatened action or proceeding, shall be immediately due and payable to Agent
by Mortgagor, with interest thereon at the applicable rate provided in the
Credit Agreement subsequent to the occurrence of an Event of Default, and shall
be secured by the Loan Documents.
19. APPLICATION OF PROCEEDS OF FORECLOSURE SALE. The proceeds of any
foreclosure sale of the Property shall be distributed and applied in the order
of priority set forth in the Credit Agreement and the other Loan Documents with
the excess, if any, being applied to any parties entitled thereto as their
rights may appear.
20. APPOINTMENT OF RECEIVER OR MORTGAGEE IN POSSESSION. Upon the
occurrence of an Event of Default, Agent shall be entitled, as a matter of
right, without notice and without regard to the solvency or insolvency of
Mortgagor, or the existence of waste of the Property or adequacy of the security
of the Property, and without giving bond, to apply for the appointment of a
receiver in accordance with the statutes and law made and provided for who shall
have all the rights, powers and remedies as provided by such statute or law,
including without limitation the rights of receiver pursuant to Minn. Stat.
Section 576.01, as amended, and who shall from the date of its appointment
through any period of redemption existing at law collect the Rents, manage the
Property so as to prevent waste, execute leases within or beyond the period of
receivership, pay all expenses for normal maintenance of the Property, and
perform the terms of this Mortgage and apply the Rents to the payment of the
expenses enumerated in Minn. Stat. Section 576.01, Subd. 2 in the priority
mentioned therein and to all expenses for maintenance of the Property and to the
costs and expenses of the receivership, including attorneys' fees, to the
repayment of the Indebtedness and as further provided in Paragraph 12 hereof.
Mortgagor does hereby irrevocably consent to such appointment.
21. FORBEARANCE BY AGENT NOT A WAIVER. Any forbearance by Agent in
exercising any right or remedy under any of the Loan Documents, or otherwise
afforded by applicable law, shall not be a waiver of or preclude the exercise of
any right or remedy. Agent's acceptance of payment of any sum secured by any of
the Loan Documents after the due date of such payment shall not be a waiver of
Agent's right to either require prompt payment when due of all other sums so
secured or to declare a default for failure to make prompt payment. The
procurement of insurance or the payment of taxes or other liens or charges by
Agent shall not be a waiver of Agent's right to accelerate the maturity of the
Indebtedness, nor shall Agent's receipt of any awards, proceeds or damages under
Paragraph 5 hereof operate to cure or waive Mortgagor's default in payment or
sums secured by any of the Loan Documents. With respect to all Loan Documents,
only waivers made in writing by Agent shall be effective against Agent.
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22. WAIVER OF STATUTE OF LIMITATIONS. Mortgagor hereby waives the right
to assert any statute of limitations as a bar to the enforcement of the lien
created by any of the Loan Documents or to any action brought to enforce the
Indebtedness or any other obligation secured by any of the Loan Documents.
23. WAIVER OF HOMESTEAD AND REDEMPTION. Mortgagor hereby waives all
right of homestead exemption in the Property. Mortgagor hereby waives all right
of redemption on behalf of Mortgagor and on behalf of all other persons
acquiring any interest or title in the Property subsequent to the date of this
Mortgage, except decree or judgment creditors of Mortgagor.
24. JURY TRIAL WAIVER. TO THE EXTENT PERMITTED BY APPLICABLE STATE LAW,
MORTGAGOR AND AGENT, BY ITS ACCEPTANCE OF THIS MORTGAGE, HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON, OR
ARISING OUT OF THIS MORTGAGE AND THE OTHER LOAN DOCUMENTS. MORTGAGOR AND AGENT
ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH OF THEM HAS RELIED ON THIS WAIVER IN ENTERING INTO THIS
MORTGAGE AND THE OTHER LOAN DOCUMENTS AND THAT EACH OF THEM WILL CONTINUE TO
RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. MORTGAGOR AND AGENT
REPRESENT AND WARRANT THAT EACH HAS HAD THE OPPORTUNITY TO REVIEW THIS JURY
WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRIAL RIGHTS.
25. NOTICE. Except for any notice required under applicable law to be
given in another manner, any notice to Mortgagor or Agent shall be given in the
manner and the address provided in the Credit Agreement.
26. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; AGENTS;
CAPTIONS. The covenants and agreements contained in the Loan Documents shall
bind, and the rights thereunder shall inure to, the respective successors and
assigns of Agent and Mortgagor, subject to the provisions of Paragraph 13
hereof. All covenants and agreements of Xxxx and Holdings shall be joint and
several. In exercising any rights under the Loan Documents or taking any actions
provided for therein, Agent may act through its employees, agents or independent
contractors as authorized by Agent. The captions and headings of the paragraphs
of this Mortgage are for convenience only and are not to be used to interpret or
define the provisions hereof.
27. GOVERNING LAW; SEVERABILITY. This Mortgage shall be governed by,
and shall be construed and enforced in accordance with, the internal laws of the
State of New York without regard to conflicts of law principles, provided,
however, that to the extent the mandatory provisions of the laws of another
jurisdiction relating to (i) the perfection or the effect of perfection or
non-perfection of the security interests in any of the Property, (ii) the lien,
encumbrance or other interest in the Property granted or conveyed by this
Mortgage, or (iii) the availability of and procedures relating to any remedy
hereunder or related to this Mortgage are required to be governed by such other
jurisdiction's laws, such other laws shall be deemed to
-16-
govern and control. The invalidity, illegality or unenforceability of any
provision of this Mortgage and the Loan Documents shall not affect or impair the
validity, legality or unenforceability of the remainder of this Mortgage and the
other Loan Documents, and to this end, the provisions of this Mortgage and the
other Loan Documents are declared to be severable.
28. RELEASE. Upon payment of all sums required by the Credit Agreement
in connection with any sale of the Property on the terms provided thereunder, or
upon payment of all obligations and liabilities under the Credit Agreement,
whichever occurs first, Agent shall release this Mortgage. Mortgagor shall pay
Agent's reasonable costs incurred in releasing this Mortgage and any financing
statements related hereto.
29. TERMS. All capitalized terms used herein and not otherwise defined
shall have the same meanings ascribed to them in the Credit Agreement and/or the
other Loan Documents.
30. EXHIBITS AND RIDERS. The following Exhibits and Riders (which may
contain additional representations, warranties, and covenants) are attached to
this Mortgage and hereby made a part of this Mortgage: Exhibit A (legal
description for Land) and Exhibit B (description of permitted encumbrances).
31. CREDIT AGREEMENT GOVERNS. This Mortgage shall constitute a
"Mortgage" as defined in the Credit Agreement and shall be additional Collateral
for the obligations of the Loan Parties to Agent and the Lenders. If and to the
extent any term or provision of this Mortgage conflicts with any term or
provision of the Credit Agreement, the provision or term of the Credit Agreement
shall govern.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, Mortgagor has executed this Mortgage or has caused
the same to be executed by its representatives thereunto duly authorized.
XXXX INDUSTRIES, INCORPORATED,
a Minnesota corporation
By: /s/ Xxxxxx Vollmershausen
-----------------------------
Name: Xxxxxx Vollmershausen
---------------------------
Its: President
-----------------------
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Xxxx Industries, Incorporated
STATE OF GEORGIA )
) SS
COUNTY OF GWINNETT )
I, Xxxxx Xxx a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that Xxxxxx Vollmershausen who is personally known
to me to be the President of Xxxx Industries, Incorporated, a corporation of the
State of Minnesota, and the same person whose name is subscribed to the
foregoing instrument, appeared before me this day in person, and acknowledged
that he signed and delivered the said instrument as President of said
corporation, pursuant to authority given by the Board of Directors of said
corporation, as (his/her) own free and voluntary act and as the free and
voluntary act of said corporation, for the uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal this 22 day of March 23, 2001.
Xxxxx Xxx
--------------------------
Notary Public
My Commission Expires:
August 13, 2004
---------------------------
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EXHIBIT A
LEGAL DESCRIPTION
Xxxx 0, 0 xxx 0, Xxxxx 0, Xxxxx Enterprise Park First Addition, Anoka County,
Minnesota.
Property Tax Identification Nos: 36-32-25-22-0067
36-32-25-23-0006
36-32-25-23-0007
Common Address: 000 Xxxx Xxxxxxxxx, Xxxxx, Xxxxxxxxx 00000
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EXHIBIT B
PERMITTED ENCUMBRANCES
1. Easements, covenants, conditions and restrictions of record listed
and described on Schedule B, General Exceptions, in the Lender's Policy of Title
Insurance Number 102008826 issued by Chicago Title Insurance Company to Agent.
2. General and special taxes and assessments affecting the Property not
yet due and payable.
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