MORTGAGE
This Mortgage is made this 7th day of May, 1996, between Xxxxxxx
Electronics Incorporated, a Minnesota Corporation (herein called the
"Mortgagor"), and Norwest Bank Minnesota South, National Association (herein
called "Mortgagee").
WITNESSETH, THAT, in consideration of the sum of Fifty Seven Thousand
Seven Hundred Twenty Five Dollars and 00/100 Dollars ($57,725.00), to him in
hand paid by the Mortgagee, the receipt whereof is hereby acknowledged, the
Mortgagor does hereby mortgage, grant, bargain, sell and convey unto the
Mortgagee, forever, all the tract(s) or parcel(s) of land (hereinafter called
the "Land"), located in the County of Blue Earth, and State of Minnesota
described as follows:
Lots Four (4) and Five (5), Block Three (3), EXCEPT that part of Lot 5
lying southerly of a line parallel with and distance 201.90 feet south
of the North line of said Xxx 0, Xxxxxxxx Xxxxxxxxxx Xxxxxx, the 5
perimeter corners of which subdivision are marked with Judicial
Landmarks.
SUBJECT TO: Easements of Record AND
A Mortgage/SSA/FFS Filed for record as document
no. 49093 on August 12, 1994 in favor of the City
of Mankato in the amount of $1,935,000.00 and
Amendment to Mortgage dated 12/28/94 noting
additional $264,620.00 and filed as document no.
49815.
TOGETHER With all the buildings and improvements now or hereafter
erected thereon, and all lighting, heating, ventilating, air-conditioning,
sprinkling and plumbing fixtures, water and power systems, engines and
machinery, boilers, ranges, ovens, dishwashers, carpeting, mirrors and mantels,
furnaces, oil burners, elevators and motors, refrigeration plants or units,
communication systems, dynamos, transformers, electrical equipment, storm and
screen windows, doors, awnings and shades and all other fixtures of every
description now or hereafter found or used upon the property above described or
appurtenant thereto, all of which, together with replacements and additions
thereto, shall be deemed fixtures and subject to the lien hereof, and together
with all hereditaments, easements, appurtenances, rents, issues, profits,
royalties and mineral, oil and gas rights now and hereafter pertaining to the
Land (all of the foregoing, together with said Land, are hereinafter referred to
as the "Mortgaged Property").
TO HAVE AND TO HOLD The Mortgaged Property unto the Mortgagee forever.
PROVIDED, NEVERTHELESS, That if the Mortgagor (i) shall pay to the
Mortgagee the sum of Fifty Seven Thousand Seven Hundred Twenty Five and 00/100
Dollars ($57,725.00), together with interest, in accordance with the terms of
that certain promissory note of Mortgagor, of even date herewith, payable to the
Mortgagee, which note matures on May 31, 2001, and any extensions or renewals
thereof (such note and any such extension or renewal herein called the "Note"),
which Note is [X] a single or multiple advance note, the proceeds which may not
be readvanced following payment; or [ ] a revolving credit note under which
advances, payments and readvances may be made from time to time, and (ii) shall
also pay all other sums, with interest thereon, as may be advanced by the
Mortgagee in accordance with this Mortgage or the payment of which may now or
hereafter be secured by this Mortgage (the indebtedness evidenced by the Note
and all other such sums are hereinafter collectively referred to as the
"Indebtedness"), and (iii) shall also keep and perform all and singular the
covenants herein contained on the part of the Mortgagor to be kept and
performed, then, this Mortgage shall be null and void; otherwise this Mortgage
shall be and remain in full force and effect. The maximum principal amount which
at any one time may be outstanding on the Note, and secured by the Mortgage is
$57,725.00. This mortgage [ ] is [X] is not a purchase money mortgage.
The Mortgagor covenants that the Mortgagor is lawfully seized of the
Mortgaged Property in fee simple and has the right to convey the Mortgaged
Property; that the Mortgaged Property is free from all liens and encumbrances
except as otherwise listed herein; that the Mortgagee shall quietly enjoy and
possess the Mortgaged Property; that the Mortgagor will warrant and defend the
title to the Mortgaged Property against all claims, whether now existing or
hereafter arising, not hereinbefore expressly excepted; and that al buildings
and improvements now or hereafter located on the Land are, or will be, located
entirely within the boundaries of the Land. The covenants and warranties of this
paragraph shall survive foreclosure of this Mortgage, and shall run with the
Land.
The Mortgagor further covenants and agrees as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST AND COMPLIANCE WITH OTHER AGREEMENTS.
The Mortgagor shall promptly pay when due the principal of and interest
on the Note, prepayment charges, if any, provided in the Note, and all
other indebtedness. The Mortgagor shall promptly and faithfully observe
all of its obligations under the following agreements:
and all of its obligations under any other agreement now in effect or
hereafter made between the Mortgagor and Mortgagee.
2. FUNDS FOR TAXES AND INSURANCE. If requested at any time or from time to
time by the Mortgagee, the Mortgagor shall pay to the Mortgagee on the
day monthly installments of principal and interest are payable under
the Note, until the Note is paid in full, a sum (hereinafter called
"Funds") equal to one-twelfth of the yearly taxes and assessments
levied against the Mortgaged Property, plus one-twelfth of yearly
premium installments on insurance required under paragraph 8 hereof,
all as estimated initially and from time to time by the Mortgagee, to
be applied by the Mortgagee to pay said taxes, assessments and
insurance premiums. No earnings or interest shall be payable to the
Mortgagor on the Funds. Such Funds shall not be, nor be deemed to be,
trust funds, and the Mortgagee shall have the right to hold the Funds
in any manner the Mortgagee elects and may comingle the Funds with
other moneys held by the Mortgagee.
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, assessments and insurance premiums as they fall
due, such excess shall, at the option of the Mortgagee, either be
promptly repaid to the Mortgagor or be credited to the Mortgagor on
monthly installments of Funds subsequently payable. If the amount of
the Funds held by the Mortgagee shall not be sufficient at any time to
pay taxes, assessments and insurance premiums as they fall due, the
Mortgagor shall pay to the Mortgagee any amount necessary to make up
the deficiency upon notice from the Mortgagee to the Mortgagor
requesting payment thereof, and the Mortgagee may apply such amounts in
such order of application as the Mortgagee may determine. Upon the
occurrence of any Event of Default, as defined in paragraph 16 hereof,
the Mortgagee may apply on the Indebtedness secured hereby, in such
order of application as the Mortgagee may determine, any Funds then in
the Mortgagee's possession.
Upon payment in full of all Indebtedness secured by this
Mortgage, the Mortgagee shall promptly remit to the Mortgagor any Funds
held by the Mortgagee.
If, under paragraph 16 hereof, the Mortgaged Property is sold
or the Mortgaged Property is otherwise acquired by the Mortgagee, the
Mortgagee may apply any funds then held by the Mortgagee as a credit
against any taxes or insurance premiums then due or against the
Indebtedness secured by this Mortgage, in such order of application as
the Mortgagee may determine.
3. PAYMENT OF CHARGES AGAINST THE PREMISES. The Mortgagor also agrees to
pay, before a penalty might attach for nonpayment thereof, all taxes
and assessment and all other charges whatsoever levied upon or assessed
or placed against the Mortgaged Property, by making payment directly to
the payee thereof, or, if the Mortgagee so designates, by making
payment in accordance with paragraph 2 hereof, and the Mortgagor will
promptly deliver to the Mortgagee any official receipts received by the
Mortgagor; to likewise pay all taxes, assessments and other charges,
levied upon or assessed, placed or made against, or measured by, this
Mortgage, or the recordation hereof, or the Indebtedness secured
hereby, provided that the Mortgagor shall not be obligated to pay any
such tax, assessment or charge if such payment would be contrary to law
or would result in the payment of an unlawful rate of interest on the
Indebtedness secured hereto. The Mortgagor shall promptly furnish to
the Mortgagee all notices received by the Mortgagor of amounts due
under this paragraph. In the event of the passage after the date of
this Mortgage of any applicable law, creating or providing for any tax,
assessment or charge which may not be lawfully paid by the Mortgagor,
the Indebtedness secured hereby, together with interest due thereon,
shall, at the option of the Mortgagee, become immediately due and
payable.
4. APPLICATION OF PAYMENTS. All payments received by the Mortgagee under
the Note of this Mortgage shall be applied by the Mortgagee in such
order of application as the Mortgagee may determine.
5. LIENS. The Mortgagor shall keep the Mortgaged property free from all
liens, whether prior or subordinate to this Mortgage, other than the
lien of current real estate taxes and installments of official
assessments with respect to which no penalty is yet payable; provided,
that the Mortgagor shall not be required to discharge any lien so long
as the Mortgagor shall agree to the payment of the obligations secured
by such lien in a manner acceptable to the Mortgagee, or shall, in good
faith, contest such lien by appropriate legal proceedings which shall
operate to prevent the enforcement of the lien of forfeiture of the
Mortgaged Property or any part thereof, and shall also give such
reasonable security to Mortgagee as may be demanded by Mortgagee to
insure compliance therewith.
6. HAZARD INSURANCE. The Mortgagor shall keep the buildings and other
improvements now existing or hereafter erected on the Land insured by
insurance carriers satisfactory to the Mortgagee against loss by fire,
hazards included in the term "extended coverage", and such other
hazards, casualties and contingencies, including war damage insurance,
as may be required by the Mortgagee, for the full replacement cost
thereof and for such periods as may be required by the Mortgagee. The
policy of such insurance shall be in a form acceptable to Mortgagee and
shall not contain a defense based on coinsurance, and shall contain the
standard provision that no act of the Mortgagor or of his agents or
representatives will render the policy void as to the Mortgagee or
affect the Mortgagee's right to recover in case of loss, and the policy
or policies of insurance shall have loss payable provisions in favor of
and in form acceptable to the Mortgagee. The Mortgagor shall pay all
premiums on such insurance by making payment, when due, directly to the
insurance carriers, or if the Mortgagee so designates, by making
payment in accordance with paragraph 2 hereof. The mortgagee shall have
the right to hold the policies and renewals thereof, and the Mortgagor
shall promptly furnish to the Mortgagee all renewal notices and all
paid premium receipts received by him. In no event shall the Mortgagee
be held responsible for failure to pay for any insurance written or for
any loss or damage growing out of a defect in any policy or growing out
of any failure of any insurance company to pay for any loss or damage
insured against or for failure by the Mortgagee to effect the insurance
required hereunder. In the event of loss, the Mortgagor shall give
prompt notice by mail to the insurance carrier and the Mortgagee, and
the Mortgagee may make proof of loss if not made promptly by the
Mortgagor. The Mortgagor and Mortgagee shall jointly adjust the
insurance; provided, however, that it is not paid within 45 days
following the damage or destruction it may be adjusted by the Mortgagee
alone at any time after said 45 day period if, but only if, an Event of
Default exists at the time of adjustment. The Mortgagee is authorized
and empowered to collect and receive insurance proceeds, and to apply
the insurance proceeds or any part thereof, at the sole discretion of
the Mortgagee, to the restoration or repair of the Mortgaged Property
damaged or to the reduction of the Indebtedness secured hereby, in such
order of application as the Mortgagee may determine. Any such
application to the principal of the Note shall not extend or postpone
the due date of the monthly installments referred to in the Note or
change the amount of such installments. All policies of insurance and
any and all refunds of unearned premiums are hereby assigned to the
Mortgagee as additional security for the payment of the Indebtedness
secured hereby. In event of foreclosure of this Mortgage, all right,
title and interest of the Mortgagor in and to any insurance policies
then in force shall pass to the purchaser at the foreclosure sale. The
Mortgagor shall not maintain or permit to be maintained any insurance
of the type referred to in this paragraph 6 with respect to the
Mortgaged Property other than the insurance required under this
paragraph 6. Notwithstanding anything contained in this paragraph to
the contrary, if this Mortgage is on a condominium or a town house and
if there is a master insurance policy in force covering the common
areas and facilities and all condominiums and town houses located in
that development, then, until otherwise notified in writing by the
Mortgagee, the Mortgagor shall have no obligation to maintain the
insurance required hereunder. Whenever such insurance is in force
(regardless of whether requested by the Mortgagee or not) the Mortgagor
hereby authorizes the Mortgagee to cancel such insurance whenever the
Mortgagee determines that such insurance does not adequately protect
the Mortgagee's interest.
7. PRESERVATION AND MAINTENANCE OF MORTGAGED PROPERTY. The Mortgagor shall
keep the buildings and other improvements now or hereafter erected on
the Land in good repair and condition, ordinary depreciation excepted,
and shall provide all utility services necessary for the operation and
preservation of the Mortgaged Property. The Mortgagor shall commit or
permit no waste and unless the Mortgaged Property primarily consists of
a single family dwelling or a duplex or other similar residential
dwelling designed to be inhabited by no more than one or two families,
shall not alter the design or structural character of any building now
or hereafter erected on the Land without the prior written consent of
the Mortgagee and in no event shall the Mortgagor do any act or thing
which would unduly impair or depreciate the value of the Mortgaged
Property. The Mortgagor shall not abandon the Mortgaged Property. The
Mortgagor shall comply with all present and future laws, ordinances,
regulations and requirements of any governmental body applicable to the
Mortgaged Property and to the occupancy and operation thereof. If this
Mortgage is on a condominium, the Mortgagor shall perform all of the
Mortgagor's obligations under the Apartment Ownership Act of the State
of Minnesota, the declaration of condominium, the by-laws and the
regulations, if any, issued in accordance with the declaration or
by-laws, or both. If this Mortgage is on a town house, the Mortgagor
shall perform all of the Mortgagor's obligations under any and all
applicable restrictions, articles of incorporation, by-laws and other
documents pertaining to the town house development.
8. INSPECTION. The Mortgagee, or its agents, shall have the right at all
reasonable times to enter upon the Mortgaged Property for the purposes
of inspection without thereby becoming liable to the Mortgagor or any
person in possession holding under the Mortgagor.
9. PROTECTION OF MORTGAGEE'S SECURITY. If the Mortgagor fails to perform
any of the covenants and agreements contained in this Mortgage or if
any action or proceeding is commenced which does or may adversely
affect the Mortgaged Property or the interest of the Mortgagor or
Mortgagee therein, or the title of the Mortgagor thereto, then the
Mortgagee, at the Mortgagee's option, may perform such covenants and
agreements, defend against and/or investigate such action or
proceeding, and take such other action as the Mortgagee deems necessary
to protect the Mortgagee's interest. The Mortgagee shall be the sole
judge of the legality, validity and priority of any claims, liens,
encumbrances, taxes, assessments, charges and premiums paid by it and
of the amount necessary to be paid in satisfaction thereof. In the
event that, after damage to or destruction of the Mortgaged Property or
condemnation of a portion of the Mortgaged Property or a sale under
threat thereof, the Mortgagee elects to restore the Mortgaged Property,
and the insurance, sale or condemnation proceeds, as the case may be,
which are paid to the Mortgagee are not sufficient to pay for such
restoration, the Mortgagee may effect the restoration in such manner as
it determines, and the cost thereof in excess of such proceeds,
together with interest thereon from the date of disbursement at the
rate provided in the Note (unless payment of interest at such rate
would be contrary to applicable law, in which event such amounts shall
bear interest at the highest rate permitted by applicable law) shall
become an additional amount secured hereunder, and shall be immediately
due and payable. Any amounts disbursed or incurred by the Mortgagee
pursuant to this paragraph 9, including, but not limited to, reasonable
attorney's fees, with interest thereon, shall become additional
Indebtedness of the Mortgagor secured by this Mortgage. The Mortgagee
is hereby given the irrevocable power of attorney (which power is
coupled with an interest and given for security and is irrevocable) to
enter upon the Mortgaged Property as the Mortgagor's agent and in the
Mortgagor's name to perform any and all covenants and agreements to be
performed by the Mortgagor as herein provided. All amounts disbursed or
incurred by the Mortgagee pursuant to this paragraph 9 shall be payable
upon demand, and shall bear interest from the date of disbursement or
the date incurred at the rate stated in the Note, unless payment of
interest at such rate would be contrary to applicable law, in which
event such amounts shall bear interest at the highest rate permitted by
applicable law. The Mortgagee shall, at its option be subrogated to any
encumbrance, lien, claim or demand, and to all the rights and
securities for payment thereof, paid or discharged with the principal
sum secured hereby or by the Mortgagee under the provisions hereof, and
any such subrogation rights shall be additional and cumulative security
for this Mortgage. Nothing contained in this paragraph 9 shall require
the Mortgagee to incur any expense or do any act hereunder, and the
Mortgagee shall not be liable to the Mortgagor for any damages or
claims arising out of action taken by the Mortgagee pursuant to this
paragraph 9.
10. CONTAMINANTS. Mortgagor warrants and represents that there are not now,
nor, to the best of Mortgagor's knowledge after reasonable
investigation, have there ever been and, without the Mortgagor
obtaining Mortgagee's consent and all requisite permits and approvals,
there will not in the future be Contaminants stored, handled, or
disposed of on the Property which would require cleanup, removal or
other remedial action under any environmental laws. Contaminants shall
mean materials, substances and compounds prohibited or regulated under
any environmental laws. Mortgagor will immediately notify the
Mortgagee, in writing, of any, (i) investigation, inquiry, claim or
action by any governmental authority or other party, against the
Mortgagor regarding any environmental laws, (ii) Contaminants on the
Property which would require cleanup, removal or other remedial action
under any environmental laws. Upon the Mortgagee's request, Mortgagor
will periodically provide environmental assessments or compliance
audits and agrees to permit environmental inspections and testing of
the Property by the Mortgagee or its agents, at the Mortgagor's
expense. If the Property is used for residential purposes, the
preceding shall not apply to the presence, use, or storage on the
Property of small quantities of Contaminants that are generally
recognized to be appropriate to normal residential uses and to
maintenance of the Property.
11. CONDEMNATION. The Mortgagor hereby irrevocably assigns to the Mortgagee
any award or payment which becomes payable by reason of any taking of
the Mortgaged Property, or any part thereof, either temporarily or
permanently, in or by condemnation or other eminent domain proceedings
or by reason of sale under threat thereof, or in anticipation of the
exercise of the right of condemnation or other eminent domain
proceedings. The Mortgagor will not enter into any agreement permitting
or consenting to the taking of the Mortgaged Property or any part
thereof or providing for the conveyance thereof in lieu of
condemnation, with anyone authorized to acquire the same in
condemnation or by eminent domain unless the Mortgagee shall have first
consented thereto in writing. In the event of any such taking, any
awards shall be adjusted jointly by the Mortgagor and the Mortgagee;
provided, however, any award not adjusted or paid within 30 days after
such taking may be adjusted solely by the Mortgagee at any time after
said 30 day period if, and only if, an Event of Default exists at the
time of adjustment. The Mortgagor will file or prosecute in good faith
and with due diligence what would otherwise be its claim in any such
award or payment and cause the same to be collected and paid over to
the Mortgagee, and the Mortgagor irrevocably authorizes and empowers
the Mortgagee (which power is coupled with an interest and given for
security and is irrevocable), in the name of the Mortgagor or
otherwise, to file and prosecute any such claim and to collect, receipt
for and retain the same. The proceeds of the award or payment may,
after deducting all reasonable costs and expenses which may have been
incurred by the Mortgagee in the collection thereof, at the sole
discretion of the Mortgagee, be released to the Mortgagor, applied to
restoration of the Mortgaged Property or applied to the payment of the
Indebtedness secured hereby, in such order of application as the
Mortgagee may determine. Any such application to principal of the Note
shall not extend or postpone the due date of the monthly installments
referred to in the Note or change the amount of such installments.
12. FORBEARANCE BY MORTGAGEE NOT A WAIVER. Any delay by the Mortgagee in
exercising any right or remedy hereunder or otherwise afforded by law
or equity shall not be a waiver of or preclude the exercise of such
right or remedy of any other right or remedy hereunder or at law or
equity. The failure of the Mortgagee to exercise any option to
accelerate maturity of the Indebtedness secured by this Mortgage, the
forbearance by the Mortgagee before or after the exercise of such
option, or the withdrawal or abandonment of proceedings provided for by
this Mortgage shall not be a waiver of the right to exercise such
option or to accelerate the maturity of such Indebtedness by reason of
any past, present or future event which would permit acceleration under
paragraph 16 hereof. The procurement of insurance or the payment of
taxes or other liens or charges by the Mortgagee shall not be a waiver
of the Mortgagee's right to accelerate the maturity of the Indebtedness
hereby secured. The Mortgagee's receipt of any awards, proceeds or
damages under paragraphs 6 and 10 hereof shall not operate to cure or
waive default by the Mortgagor under paragraph 16 hereof.
13. MORTGAGEE'S REMEDIES CUMULATIVE. All remedies of the Mortgagee are
distinct and cumulative to any other right or remedy under this
Mortgagee or afforded by law or equity, and may be exercised
concurrently or independently, and as often as the occasion therefor
arises.
14. SUCCESSORS AND ASSIGNS BOUND; NUMBER; GENDER; JOINT AND SEVERAL
LIABILITY; CAPTIONS. The covenants and agreements herein contained
shall bind, and the rights hereunder shall inure to, the respective
heirs, legal representatives, successors and assigns of the Mortgagee
and the Mortgagor. Wherever used, the singular number shall include the
plural, the plural the singular, and the use of any gender shall be
applicable to all genders. All covenants and agreements of the
Mortgagor shall be joint and several; provided, however, that nothing
contained in this Mortgage shall in any way obligate Mortgagor's spouse
to pay the Note or the other indebtedness unless such spouse also signs
the Note. 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.
15. NOTICE. Any notice from the Mortgagee to the Mortgagor under this
Mortgage shall be deemed to have been given by the Mortgagee and
received by the Mortgagor, when mailed by certified mail by the
Mortgagee to the Mortgagor at the Mortgaged Property or at such other
address as the Mortgagor may designate to the Mortgagee. Any notice
from the Mortgagor to the Mortgagee under this Mortgage shall be deemed
to have been given by the Mortgagor and received by the Mortgagee when
received by the Mortgagee at the Mortgagee's address stated above, or
at such other address as the Mortgagee may designate to the Mortgagor.
16. GOVERNING LAW; SEVERABILITY. This Mortgage shall be governed by the
laws of the State of Minnesota. In the event that any provision or
clause of this Mortgage conflicts with applicable law, such conflict
shall not affect other provisions of the Mortgage which can be given
effect without the conflicting provisions, and to this end the
provisions of the Mortgage are declared to be severable. In the event
that any applicable law in effect on the date hereof limiting the
amount of interest or other item which may be lawfully charged against
the Mortgagor is interpreted in a manner such that any payment provided
for in this Mortgage or in the Note, whether considered separately or
together with other payments that are considered a part of this
Mortgage and Note transaction, violates such law, and Mortgagor is
entitled to the benefit of such law, such payment is hereby reduced to
the extent necessary to eliminate such violation.
17. DEFAULT; ACCELERATION AND FORECLOSURE. Each of the following
occurrences shall constitute an event of default hereunder (herein
called an "Event of Default"):
(a) The Mortgagor shall fail to pay when due any amount payable
under the Note or any other Indebtedness secured by this
Mortgage and the continuance thereof for 10 calendar days;
(b) The Mortgagor shall fail duly to perform or observe any of the
other covenants contained in this Mortgage or in the Note and
the continuance thereof for 10 calendar days;
(c) The Mortgagor shall be dissolved or its corporate existence
shall be terminated, or it shall become insolvent (however
evidenced) or commit any act of bankruptcy or make a general
assignment for the benefit of creditors, or if any proceeding
is instituted by or against the Mortgagor for any relief under
any bankruptcy or insolvency laws, or if a receiver is
appointed of or a writ or order of attachment or garnishment
is made or issued, or if any proceeding or procedure is
commenced or any remedy supplementary to or in enforcement of
a judgment is employed against, or with respect to any
property of, the Mortgagor;
(d) Any representation or warranty made by the Mortgagor herein is
untrue or misleading in any material respect; or
(e) The Mortgagor shall sell or transfer, or agree to sell or
transfer all or any part of the Mortgaged Property or interest
therein.
Upon the occurrence of an Event of Default or at any time thereafter
until such Event of Default is cured to the satisfaction of the
Mortgagee, the Mortgagee may, at its option, exercise either or both of
the following rights and remedies (and any other rights and remedies
available to it):
(a) The Mortgagee may declare immediately due and payable all
Indebtedness secured by this Mortgage, and the same shall
thereupon be immediately due and payable without presentment
or other demand, protest, notice of dishonor or any other
notice of any kind, all of which are hereby expressly waived.
Receipt of partial payment of the Indebtedness after the
Mortgagee has exercised its right under this subsection 16(a)
shall not operate as a waiver of such right.
(b) The Mortgagor hereby authorizes and empowers the Mortgagee to
foreclose this Mortgage by action or advertisement, pursuant
to the statutes of Minnesota in such case made and provided,
power being herein expressly granted to sell the Mortgaged
Property at public auction and to convey the same to the
purchaser, 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.
18. MISCELLANEOUS RIGHTS OF MORTGAGEE. The Mortgagee may at any time and
from time to time, without notice, release any person liable for
payment of any Indebtedness secured hereby, extend the time or agree to
alter the terms of payment of any of the Indebtedness, accept
additional security of any kind, release any property securing the
Indebtedness, consent to the making of any plat or map of the Mortgaged
Property or the creation of any easement thereon or any covenants
restricting use of occupancy thereof, or alter or amend the terms of
this Mortgage in any way. No such release, modification, addition or
change shall affect the liability of any person other than the person
so released for payment of any Indebtedness secured hereby, nor affect
the priority and first lien status of this Mortgage upon any property
not so released. Any personal property remaining upon the Mortgaged
Property, after such Mortgaged Property has been possessed or occupied
by the Mortgagee or its agent following foreclosure of this Mortgage or
under any deed in lieu of foreclosure, shall be conclusively presumed
to have been abandoned by the Mortgagor or any other former owner
thereof; and the Mortgagee shall not in any way incur any liability or
obligation to said Mortgagor of former owner by reason of any action
which the Mortgagee in its sole discretion chooses to take with respect
to said personal property; provided, however, that in no event shall
the Mortgagee be required to take any affirmative action in preserving,
protecting or otherwise overseeing the deployment or storage of said
personal property, nor shall the Mortgagee incur any liability to the
Mortgagor or former owner of said personal property because of failure
to take any such affirmative action with respect to said personal
property.
19. ADDITIONAL LOANS AND MODIFICATIONS. In addition to the payment of the
Indebtedness secured hereby, this Mortgage shall also secure the
payment of all other advances heretofore or at any time hereafter made
to the Mortgagor by the Mortgagee and the payment of all other
Indebtedness of every type and description now or hereafter owing by
the Mortgagor to the Mortgagee, unless (in the case of such advance of
Indebtedness) the Mortgagee agrees otherwise in writing. Nothing herein
contained shall imply any obligation on the part of any holder of the
Note to make any such additional loan. All those claiming by, through
or under Mortgagor consent to any extensions or increases in the
interest rate or principal amount of this Mortgage Indebtedness agreed
to by the Mortgagee and Mortgagor, their successors and assigns.
20. ADDITIONAL COVENANTS. The Mortgagor further covenants and agrees as
follows:
21. Mortgagor waives all right of homestead exemption in the Land.
IN WITNESS WHEREOF, The Mortgagor has duly executed this Mortgage as of
the day and year first-above written:
Xxxxxxx Electronics Incorporated
/s/ X. X. Xxxxxxx
President
This instrument was drafted by: Tax statements for the real property described
in this instrument should be sent to:
Norwest Bank Minnesota South,
National Association Xxxxxxx Electronics Incorporated
Bank name Name
X.X. Xxx 000 1950 Excel Drive
Bank address Address
Xxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000
City, State and Zip City, State and Zip
00-0000000
Tax Identification No.
STATE OF MINNESOTA
SS.
COUNTY OF
The foregoing instrument was acknowledged before me this _____ day of
____________, _____, by _______________________
Notary Public, _____________
County _________
My Commission expires: ____________, ____
STATE OF MINNESOTA
SS.
COUNTY OF Blue Earth
The foregoing instrument was acknowledged before me this 7th day of
May, 1996, by and W. Xxxx Xxxxxxx, the President and of Xxxxxxx Electronics,
Inc., a Minnesota corporation, on behalf of the corporation.
Xxxxxxxxx X. Xxxxxx
Notary Public, Blue Earth County Minnesota
My Commission expires: January 31 , 2000
XXXXXX XX XXXXXXXX XX XXXXX, XXXXX XX XXXXXXXXX _____________, _____ No. ____
County of Registration tax hereon of
I hereby certify that the within Mortgage ___________________ Dollars paid.
was filed in this office for record on
the ____ day of _________, ______, _______________________________
at _________ o'clock _____ M., and County Treasurer
was duly recorded in Book _____ By___________________________ Deputy
of Mortgages, page ____.
Countersigned:
________________________________ _________________________________
Registrar of Deeds County Auditor
By ______________________ _____ Deputy By_______ __________________ Deputy
(The above space is reserved for recording purposes only)
MORTGAGE MODIFICATION AGREEMENT
(Amending Mortgage of May 7, 1996)
THIS AGREEMENT is made as of July 31, 1998, between Norwest Bank
Minnesota South, National Association, having its office at Second and Xxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxxxx 00000 (the "Mortgage"), and Xxxxxxx Electronics,
Incorporated, a Minnesota corporation, having its office at 0000 Xxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxx 00000 (the "Mortgagor").
RECITALS
A. The Mortgagee is the holder of the promissory note dated April 29,
1996, made by the Mortgagor and payable to the order of the Mortgagee in the
original principal amount of $57,725.00 (the "1996 Term Note"). The 1996 Term
Note provides for principal and interest to be payable together in installments
with the last installment due and payable on May 31, 2001.
B. As of the date hereof, the unpaid principal balance of the Note is
$53,368.75.
C. To secure payment of the 1996 Term Note, the Mortgagor executed and
delivered a mortgage to the Mortgagee, dated May 7, 1996, subjecting to the lien
thereof certain real estate located in Blue Earth County, Minnesota (the
"Mortgage"), more particularly described in the Mortgage. Capitalized terms not
otherwise defined herein shall have the meaning given them in the Mortgage.
D. The Mortgage was filed for record on May 15, 1996, in the office of
the Registrar of Titles of the above-named county as Document Number 6041, and
in the office of the County Recorder of the above-named county as Document
Number 52580.
E. The Mortgagor has now asked the Mortgagee to increase the amount of
the 1996 Term Note to $168,368.75, and to extend the maturity date to July 31,
2003. This proposed change is acceptable to the Mortgagor and the Mortgagee. The
Mortgagor acknowledges that the Note and Mortgage are the legal and binding
obligations of the Mortgagor, free of any claim, defense or offset.
Accordingly, in consideration of the premises and other good and
valuable consideration, each paid to the other, the parties hereto agree as
follows:
1. The Note, as described in the Mortgage, shall be amended to refer to
the promissory note of even date given by the Mortgagor to the Mortgagee in the
principal amount of $168,368.75, which is given as replacement for, and not in
satisfaction of, the 1996 Term Note, and all replacements, refinancings and
renewals thereof, which Note shall have a maturity date of July 31, 2003.
2. Except as expressly amended herein, the Mortgage shall remain in
full force and effect in accordance with their original terms.
3. The Mortgage hereby restates and reaffirms all of the
representations and covenants set forth in the Mortgage as if said
representations and covenants were fully set forth herein.
4. The Mortgagor hereby agrees to execute such other further
agreements, documents and instruments as are deemed necessary or advisable by
the Mortgagee from time to time in order to effectuate the purpose of the
foregoing.
IN WITNESS WHEREOF, the Mortgagor and the Mortgagee have executed this
Agreement this 31st day of July, 1998.
NORWEST BANK MINNESOTA SOUTH,
NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxx
Its: ______________________
XXXXXXX ELECTRONICS INCORPORATED,
a Minnesota corporation
By: /s/ X. X. Xxxxxxx
Its: ______________________
(The above space is reserved for recording purposes only)
===============================================================================
NOTE AND MORTGAGE
MODIFICATION AGREEMENT
(Amending Mortgage of May 7, 1996
THIS NOTE AND MORTGAGE MODIFICATION (the "Agreement") is made as of
September 29, 1999, between Norwest Bank Minnesota South, National Association
(the "Mortgage"), having its office at Second and Xxxxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxxxx 00000, and Xxxxxxx Electronics Incorporated, a Minnesota corporation,
having its office at 0000 Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000 (the
"Mortgagor").
RECITALS
A. The Mortgage has previously loaned the Mortgagor the sum $168,368.75
(the "Term Loan"), which Term Loan is evidenced by a promissory note dated July
31, 1998, made by the Mortgagor and payable to the order of the Mortgagee in the
original principal amount of $168,368.75 ("Note"). The Note provides for
principal and interest to be payable together in installments with the last
installment due and payable on July 31, 2003.
B. Immediately prior to the execution of this Agreement, the unpaid
principal balance of the Note was $166,326.64.
C. To secure payment of the Note, the Mortgagor previously delivered a
mortgage to the Mortgagee, dated May 7, 1996, subjecting to the lien thereof
certain real estate located in Blue earth County, Minnesota (the "Mortgage"),
more particularly described in the Mortgage.
D. The Mortgage was filed for record on May 15, 1996, in the office of
the Registrar of Titles of the above-named county as Document Number 6041, and
in the office of the County Recorder of the above-named county as Document
Number 52580.
E. The Mortgagor has now asked the Mortgagee to increase the Term Loan
by lending it an additional $363,726.00, which obligation continues to be
evidenced by the Note.
Accordingly, in consideration of the premises and other good and
valuable consideration, each paid to the other, the parties hereto agree as
follows:
1. The Mortgagee shall, simultaneously with the execution of this
Agreement, loan and deliver to the Mortgagor, the sum of $363,726.00, and the
principal amount of the Note, following the increase of the Term Loan, shall be
amended to reflect a total principal obligation of $530,052.64, with accrued
interest of $1,131.87.
2. The Note is hereby amended to reflect that, effective as of the date
of this Agreement, the unpaid principal balance of the Note shall bear interest
at an annual fixed rate of 8.25%, calculated on actual days elapsed in a year of
360 days.
3. The Mortgage is hereby amended to reflect the above-described
amendment to the Note.
4. Except as expressly amended herein, the Note and Mortgage shall
remain in full force and effect in accordance with their original terms.
5. The Mortgagor hereby restates and reaffirms all of the
representations and covenants set forth in the Note and Mortgage as if said
representations and covenants were fully set forth herein.
6. The Mortgagor hereby agrees to execute such other further
agreements, documents and instruments as are deemed necessary or advisable by
the Bank from time to time in order to effectuate the purposes of the foregoing.
IN WITNESS WHEREOF, the Mortgagor and the Mortgagee have executed this
Agreement this 29th day of September, 1999.
XXXXXXX ELECTRONICS,
INCORPORATED NORWEST BANK MINNESOTA SOUTH,
a Minnesota corporation NATIONAL ASSOCIATION
By: /s/ X. X. Xxxxxxx By: /s/ Xxxxx Ordall
Its: CEO & CFO Its: Vice President
