MORTGAGE AND SECURITY AGREEMENT
AND FIXTURE FINANCING STATEMENT
Document Number Document Title Recording Area
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Name and Return Address
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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See Exhibit A attached hereto
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Parcel Identification Number (PIN)
THE MORTGAGED PROPERTY IS NOT HOMESTEAD PROPERTY
This MORTGAGE AND SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT
("Mortgage"), given and granted as of this 30th day of October 2002 by MIDWEST
EXPRESS AIRLINES, INC., a Wisconsin corporation having a mailing address of 0000
Xxxxx Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxx 00000 ("Mortgagor"), to U.S. BANK
NATIONAL ASSOCIATION having a mailing address of 000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, as Agent ("Mortgagee") for the Lenders (as defined
below),
W I T N E S S E T H:
WHEREAS, pursuant to that certain Senior Secured Revolving Credit
Agreement, dated as of August 31, 2001, as amended to date (as so amended and as
amended hereafter, the "Credit Agreement"), between MIDWEST EXPRESS HOLDINGS,
INC. (the "Borrower"), the Mortgagee and those financial institutions from time
to time party thereto (collectively, the "Lenders"), the Lenders have agreed to
extend revolving credit loans to the Borrower and the Issuing Bank (as defined
in the Credit Agreement) has issued letters of credit for the account of the
Borrower; and
WHEREAS, the Mortgagor has executed a Subsidiary Guaranty dated as of
August 31, 2001 (as amended or modified from time to time, the "Guaranty")
pursuant to which the Mortgagor has guarantied all of the obligations of the
Borrower owing to the Lenders and the Agent under the Credit Agreement or
otherwise; and
NOW, THEREFORE, Mortgagor, in consideration of the premises hereof, and
for the purpose of securing all present and future indebtedness, obligations,
and liabilities, and all renewals and extensions thereof, now or hereafter owed
to the Agent or the Lenders, or any of them, by the Mortgagor, arising from, by
virtue of, evidenced by, or pursuant to the Guaranty, and any and all other
indebtedness, obligations and liabilities arising from this Mortgage or any and
all other instruments, agreements, guaranties, and documents ever delivered to
the Mortgagee or the Lenders pursuant to the Guaranty, together with all
interest accruing thereon (including without limitation any interest accruing
subsequent to any petition filed by or against the Borrower or any Guarantor
under the U.S. Bankruptcy Code) and all costs, expenses, and attorneys' fees
incurred in the enforcement or collection of the indebtedness, obligations, and
liabilities described in this paragraph, whether such are direct, indirect,
fixed, contingent, liquidated, unliquidated, joint, several, or joint and
several (collectively, the "Obligations"),
DOES BY THESE PRESENTS GRANT, BARGAIN, SELL, MORTGAGE, WARRANT and CONVEY to
Mortgagee, its successors and assigns, forever, the real estate described on
Exhibit A attached hereto (the "Real Estate"), which is incorporated herein by
reference, together with the buildings and improvements now or hereafter
situated thereon and all appurtenances thereto and all rents, issues, and
profits therefrom, located in the County of Milwaukee, State of Wisconsin;
TOGETHER WITH all right, title, and interest of Mortgagor in and to any
and all buildings, structures and improvements of every nature whatsoever now or
hereafter situated on the Real Estate (said Real Estate, buildings, structures
and improvements being sometimes referred to herein as the "premises") and all
fixtures, appliances and furniture, and other property of every nature
whatsoever, now or hereafter owned by Mortgagor located in or on, or attached
to, or used or intended to be used in connection with or with the operation of,
the premises, buildings, structures, or other improvements, or in connection
with any construction being conducted or which may be conducted thereon, and
owned or leased by Mortgagor, including all extensions, additions, improvements,
betterments, renewals, substitutions, and replacements to any of the foregoing
and all of the right, title, and interest of Mortgagor in and to any such
property or fixtures together with the benefit of any deposits or payments now
or hereafter made on such property or fixtures by Mortgagor or on its behalf; it
being mutually agreed that all of the aforesaid property owned by Xxxxxxxxx and
placed on the premises shall, so far as permitted by law, be deemed to be
fixtures, a part of the realty, and security for the Obligations;
notwithstanding the agreement and declaration hereinabove expressed that certain
articles of property form a part of the realty covered by this Mortgage and
shall be appropriated to its use and deemed to be realty, to the extent that
such agreement and declaration may not be effective and that any of said
articles may constitute goods (as said term is used in the Uniform Commercial
Code), this instrument shall constitute a security agreement creating a security
interest in such goods, as collateral, in favor of Mortgagee as a secured party
and Mortgagor as Debtor, all in accordance with said Uniform Commercial Code as
more particularly set forth in Paragraph 5 hereof;
TOGETHER WITH all easements, rights of way, gores of land, streets, ways,
alleys, passages, sewer rights, waters, water courses, water rights and powers,
and all estates, rights, titles, interests, privileges, liberties, tenements,
hereditaments, and appurtenances whatsoever, in any way belonging, relating, or
appertaining to the interest of Mortgagor in the premises, or which hereafter
shall in any way belong, relate, or be appurtenant thereto, whether now owned or
hereafter acquired by Xxxxxxxxx, and the reversion and reversions, remainder and
remainders, rents and issues thereof, and all the estate, right, title,
interest, property, possession, claim, and demand whatsoever, at law as well as
in equity, of Mortgagor of, in, and to the same; and
TOGETHER WITH all proceeds of the foregoing, including without limitation
all judgments, awards of damages, and settlements hereafter made resulting from
condemnation proceedings or the taking of the premises or any portion thereof
under the power of eminent domain, any proceeds of any policies of insurance
maintained with respect to the premises or proceeds of any sale, option, or
contract to sell the premises or any portion thereof; and Mortgagor hereby
authorizes, directs, and empowers Mortgagee, at its option, on behalf of
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Xxxxxxxxx, or the successors or assigns of Mortgagor, to adjust, compromise,
claim, collect, and receive such proceeds, to give proper receipts and
acquittances therefor, and, after deducting expenses of collection, to apply the
net proceeds as a credit upon any portion, as selected by Mortgagee, of the
indebtedness hereby secured, notwithstanding the fact that the same may not then
be due and payable or that the indebtedness hereby secured is otherwise
adequately secured.
TOGETHER WITH all rents, royalties, issues, revenue, income and other
benefits from the premises, equipment, fixtures and all other property; and
TOGETHER WITH all leases, subleases and rental agreements now or hereafter
on or affecting the premises, equipment, fixtures and all other property,
whether written or oral, and all agreements for use of the premises, equipment,
fixtures and all other property hereto together with all security therefor and
all moneys payable thereunder and all contracts, trademarks, trade names and
logos used in connection with the premises, equipment, fixtures and all other
property.
XXXXXXXXX XXXXXX WARRANTS to and covenants with Mortgagee and its
successors and assigns that Mortgagor has good title to the premises in fee
simple for the Real Estate free and clear of all liens and encumbrances,
excepting only as approved and accepted by Mortgagee as set forth on Schedule B
to that certain Title Commitment No. 1144356 issued by Chicago Title Insurance
Company in favor of the Mortgagee (the "Permitted Exceptions"), and that
Xxxxxxxxx has the full and legal right to mortgage, assign, convey, and warrant
the premises, and that Mortgagor will warrant and defend the title to the same
against all claims whatsoever.
TO HAVE AND TO HOLD, subject to the Permitted Exceptions, the above
granted and described premises, fixtures, appurtenances, and property (the
"Mortgaged Property") unto Mortgagee and its successors and assigns, forever.
PROVIDED ALWAYS, and these presents are upon this express condition, that
if the Guaranty shall have terminated and all of the Obligations shall have been
paid in accordance with their terms, and if the Mortgagor shall well and truly
comply with each and every covenant and condition set forth in this Mortgage,
and in the Guaranty, then these presents shall become void. Otherwise, this
Mortgage shall remain in full force and effect.
THIS MORTGAGE IS ON THE FOLLOWING CONDITIONS:
1. All of the Mortgaged Property shall stand as security for all of the
Obligations secured hereby. The lien hereof is, and shall continue to be, a
valid and continuing second lien upon all of the Mortgaged Property to secure
the prompt payment of all amounts due under the Guaranty and the performance of
each and every obligation of Mortgagor provided in this Mortgage or the
Guaranty. Xxxxxxxxx, from time to time, shall execute and deliver any and all
such further conveyances and instruments as may be requested by Mortgagee in
order to record the description of the Mortgaged Property and to assure that the
same is subject to the lien of the Mortgage on the public record.
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2. No building or other property now or hereafter covered by the lien of
this Mortgage shall be removed, demolished, or materially altered without the
prior written consent of Mortgagee.
3. Mortgagor shall not enter into any lease of the Mortgaged Property
without the prior written consent of Mortgagee.
4. So long as the Guaranty remains in effect:
4.1 Mortgagor will duly and punctually pay all amounts due under the
Guaranty, and all other Obligations when and as the same shall become due and
payable in accordance with the terms thereof and shall faithfully comply with
and carry out all of its covenants and agreements set forth in this Mortgage and
the Guaranty.
4.2 Mortgagor will keep the Mortgaged Property properly insured against
loss or damage as may be required by Mortgagee, and with insurance companies
approved by Mortgagee, the policies for which insurance shall show Mortgagee as
an additional party insured and shall be payable to Mortgagee as lender's loss
payee under standard mortgage endorsements. Without limiting the foregoing,
Mortgagor will procure, deliver to and maintain for the benefit of Mortgagee
during the continuance of this Mortgage and until the same is fully satisfied
and released, a policy or policies of comprehensive insurance insuring the
Mortgaged Property (including buildings and improvements now existing or
hereafter erected on the said premises) against loss or damage by fire,
lightning, windstorm, hail, explosion, riot, vehicles, smoke, and such other
hazards, casualties, and contingencies as Mortgagee may designate, in the amount
of the full insurable value of the premises located on the Mortgaged Property.
Mortgagor will promptly pay when due premiums on any policy or policies of
insurance required hereunder, and will deliver to Mortgagee renewals of such
policy or policies at least thirty (30) days prior to the expiration date
thereof. In the event of any loss or damage, Mortgagor will give prompt notice
thereof to Mortgagee. Mortgagee thereupon may make proof of such loss or damage,
if the same is not promptly made by Mortgagor. All proceeds of insurance, in the
event of such loss or damage, shall be payable to Mortgagee, and any affected
insurance company is authorized and directed to make payment thereof directly to
Mortgagee. The delivery to Mortgagee of any policy or policies of insurance
hereunder, or renewals thereof, shall constitute an assignment to Mortgagee of
all unearned premiums thereon as further security for the payment of the
Obligations. In the event of any foreclosure action or other transfer of title
to the property covered hereby in extinguishment of the Obligations, all right,
title, and interest of Mortgagor in and to any policy or policies of insurance
then in force shall pass to the purchaser or grantee; provided, however, that
Mortgagee shall not cancel or decrease any insurance coverage prior to any
foreclosure or other transfer of title without the prior consent of Mortgagor.
After the occurrence and during the continuance of an Event of Default,
Mortgagee is authorized and empowered to settle, adjust, or compromise any
claims for loss, damage, or destruction under any policy or policies of
insurance. Notwithstanding any terms to the contrary contained herein, if no
Event of Default has occurred, such proceeds may be paid directly to Mortgagor
and used by the Mortgagor as it sees fit, without obtaining the prior written
consent of the Mortgagee to such application, either to restore, repair or
replace or rebuild the
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Mortgaged Property or to repay the Obligations secured hereby. In the event any
Event of Default has occurred and is continuing, any insurance proceeds received
thereafter shall at the discretion of Mortgagee be applied to the restoration,
repair, or replacement, or rebuilding of the Mortgaged Property or to and in
reduction of any the Obligations secured hereby in the order selected by the
Mortgagee.
4.3 Mortgagor will pay before delinquent all taxes, installments of
special assessments and other governmental charges of every type or nature
levied or assessed against the Mortgaged Property or any part thereof (or any
taxes imposed on the basis of rentals received by Mortgagor as lessor under
leases for portions of the premises, if such a tax is imposed as a substitute
for or in addition to real estate taxes) and exhibit to Mortgagee paid receipts
therefor, except when the validity thereof is being challenged in good faith by
appropriate proceedings adequate to prevent foreclosure of the Mortgaged
Property. Xxxxxxxxx agrees to promptly pay all taxes and assessments assessed or
levied under or by virtue of any state, federal, or municipal law or regulation
hereafter passed, against Mortgagee upon this Mortgage or the Obligations or the
debt hereby secured or the rents or profits assigned to Mortgagee other than
taxes based solely upon the income of the Mortgagee.
4.4 Mortgagor will make or cause to be made all structural and
non-structural exterior and interior, ordinary and extraordinary, foreseen and
unforeseen repairs, renewals and replacements required to maintain and keep the
Mortgaged Property in good condition and repair, reasonable wear and tear
excepted. To that end, Xxxxxxxxx will not commit or suffer any waste of the
Mortgaged Property, and will promptly comply with, or cause to be complied with,
all statutes, ordinances, and requirements of any governmental authority
relating to the Mortgaged Property. Mortgagor promptly will repair, restore,
replace, or rebuild any part of the Mortgaged Property now or hereafter subject
to the lien of this Mortgage which may be damaged or destroyed by any casualty
whatsoever or which may be affected by any proceeding of the character to which
reference is made to in paragraph 4.5 hereof unless the Mortgagee has required
the Mortgagor to repay the Obligations with the insurance proceeds or the award
in such proceeding. Mortgagor promptly will comply with, or cause to be complied
with, any direction or certificate of occupancy of any public officer or
officers, and with the requirements of all policies of public liability, fire,
and other insurance at any time enforced with respect to the Mortgaged Property,
which shall impose any duty upon Mortgagor with respect to any part of the
Mortgaged Property or the use, occupation, or control thereof or the conduct of
any business therein, whether or not any of the same requires structural repairs
or alterations.
4.5 Xxxxxxxxx agrees that all awards heretofore or hereafter made by any
public or quasi-public authority to Mortgagor or its successor with respect to
the Mortgaged Property by virtue of an exercise of the right of eminent domain
by such authority, including any award for a taking of title, possession or
right of access to a public way, or for any change of grade of streets affecting
said premises, are hereby assigned to Mortgagee. Notwithstanding any taking by
eminent domain or other injury to or decrease in value of the Mortgaged
Property, Mortgagor shall continue to pay all of its obligations as described in
the Guaranty until any such award or payment shall have been actually received
and applied by Mortgagee to the Guaranty obligations, and any reduction in the
amount due under the Guaranty resulting from the
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application by Mortgagee of such award or payment as hereinafter set forth shall
be deemed to take effect only on the date of such receipt and application. Such
award or payment may be applied in such proportions and priority as Mortgagee,
in Mortgagee's sole discretion, may elect, to the payment of any amounts due, or
which may become due, under the Guaranty or any sums secured by this Mortgage,
and/or to payment to Mortgagor, on such terms as Mortgagee may specify, to be
used for the sole purpose of altering, restoring, or rebuilding any part of the
Mortgaged Property which may have been altered, damaged, or destroyed as a
result of any such taking or other injury to the Mortgaged Property. If, prior
to the receipt by Mortgagee of such award or payment, the Mortgaged Property
shall have been sold on foreclosure of this Mortgage, then Mortgagee shall have
the right to receive such award or payment to the extent of any deficiency found
to be due upon such sale, with legal interest thereon, whether or not a
deficiency judgment on this Mortgage shall have been sought or recovered and
also to the extent of the reasonable counsel fees, costs, and disbursements
incurred by Mortgagee in connection with the collection of such award or
payment.
4.6 Mortgagor, during the term of this Mortgage, will not sell, contract
to sell, mortgage, or otherwise encumber or transfer the Mortgaged Property or
any interest therein, or change the form of ownership thereof, without the prior
written consent of Mortgagee except for liens granted to the Mortgagee.
Mortgagor, with approval of Mortgagee, may grant easements, licenses, or
rights-of-way over, under, or upon the site, so long as such easements,
licenses, or rights-of-way do not destroy or diminish the value or usefulness of
the Mortgaged Property as determined by Mortgagee. If Mortgagor violates the
foregoing covenants, or sells, conveys, or alienates the Mortgaged Property, or
any interest therein, whether legal or equitable, or xxxxxx or removes any part
thereof, or shall be divested of its title or any interest therein in any manner
or way, whether voluntarily or involuntarily, or changes the form of ownership
thereof, without the prior written consent of Mortgagee, then in any such case
Mortgagee shall have the right, at its option, to declare any indebtedness or
Obligations secured hereby immediately due and payable irrespective of any due
date specified in the Guaranty.
4.7 Except for the Permitted Exceptions, Xxxxxxxxx will not enter, create
or suffer to be created any further mortgage, lease, charge, lien, or
encumbrance upon the Mortgaged Property, or any part thereof, whether or not
prior to or subordinate to or on a parity with the lien of this Mortgage,
without the prior written consent of Mortgagee.
4.8 If any action or proceeding be commenced (except an action to
foreclose this Mortgage or to collect the debt secured hereby), to which action
or proceeding Mortgagee is or becomes a party or in which it becomes necessary
to defend or uphold the lien of the Mortgage or the efficacy of any instrument
of Mortgagor, all sums paid by Mortgagee for the expense of any litigation
(including reasonable counsel fees) to prosecute or defend the rights and lien
created by this Mortgage, on notice and demand, shall be paid by Mortgagor.
Payment of such sums by Xxxxxxxxx shall be secured hereby as a further charge
and lien upon the Mortgaged Property, with interest thereon at the Default Rate,
which is 2% plus the Prime Rate, as defined in the Credit Agreement.
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4.9 Mortgagor covenants and represents that the Mortgaged Property
complies, and any building to be constructed thereon, when completed, will
comply, in all material respects, with the covenants and restrictions affecting
the premises and with all applicable permits and authorizations and building and
zoning laws and with all other applicable laws, orders, ordinances, rules,
regulations and requirements of all Federal, State, County and municipal
governments, departments, commissions, boards and officers. Xxxxxxxxx will at
all times so own and use the same and take all steps necessary to assure such
compliance at all times. Mortgagor promptly will advise Mortgagee of any action,
suit, or proceeding pending or, to Mortgagor's knowledge, threatened, before any
tribunal, board, or body which might adversely affect the compliance of any of
the Mortgaged Property with such covenants, restrictions, building, zoning, and
other laws, orders, ordinances, rules, regulations, or requirements. Mortgagor
will promptly, diligently, and competently defend all such actions, suits, or
proceedings.
4.10 Mortgagee and its employees or agents shall have the right at all
reasonable times after notice to Mortgagor to enter upon and inspect the
Mortgaged Property; provided, however, upon the occurrence and continuation of
any Event of Default (as hereinafter defined), Mortgagee and its employees or
agents shall have the right at all reasonable times to enter upon and inspect
the Mortgaged Property with or without notice.
5. Mortgagor and Mortgagee agree that this Mortgage shall constitute a
security agreement within the meaning of the Wisconsin Uniform Commercial Code
(hereinafter referred to as the "Code") with respect to (i) any and all sums at
any time on deposit for the benefit of Mortgagor, held by Mortgagee (whether
deposited by or on behalf of Mortgagor or anyone else) pursuant to any of the
provisions of this Mortgage and (ii) with respect to any personal property
included in the granting clauses of this Mortgage, which personal property may
be deemed to be not affixed to the Real Estate or may not constitute a "fixture"
(within the meaning of Section 9-102(k) of the Code) (which property is
hereinafter referred to as "Personal Property") and all replacements of such
Personal Property, substitutions for such Personal Property, additions to such
Personal Property, and the proceeds thereof (all of said Personal Property and
the replacements, substitutions and additions thereto and the proceeds thereof
being sometimes hereinafter collectively referred to as the "Collateral"), and
that a security interest in and to the Collateral is hereby granted to
Mortgagee, and the Collateral and all of Mortgagor's right, title, and interest
therein are hereby assigned to Mortgagee, all to secure payment of the
indebtedness hereby secured. All of the terms, provisions, conditions, and
agreements contained in this Mortgage pertain and apply to the Collateral as
fully and to the same extent as to any other property comprising the premises.
The following provisions of this Paragraph shall not limit the applicability of
any other provision of this Mortgage but shall be in addition thereto:
5.1 Mortgagor (being the debtor as that term is used in the Code) is and
will be the true and lawful owner of the Collateral, subject to no liens,
charges, or encumbrances other than: the lien hereof, other liens and
encumbrances benefitting Mortgagee and no other party, and the Permitted
Exceptions.
5.2 The Collateral is to be used by Mortgagor solely for business
purposes.
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5.3 The only persons having any security interest in the Collateral are
Mortgagor, Mortgagee, and holders of Permitted Exceptions.
5.4 No financing statement (other than financing statements showing
Mortgagee as the sole secured party, or with respect to the Permitted
Exceptions) covering any of the Collateral or any proceeds thereof is on file in
any public office except pursuant hereto. Mortgagor, at its own cost and
expense, upon demand, will furnish to Mortgagee such further information and
will execute and deliver to Mortgagee such financing statements and other
documents in form satisfactory to Mortgagee and will do all such acts and things
as Mortgagee may at any time or from time to time request or as may be necessary
or appropriate to establish and maintain a perfected security interest in the
Collateral as security for the Obligations, subject to no other liens or
encumbrances, other than liens or encumbrances benefitting Mortgagee and the
Permitted Exceptions. Xxxxxxxxx will pay the cost of filing or recording such
financing statements or other documents and this instrument in all public
offices wherever filing or recording is deemed by Mortgagee to be necessary or
desirable.
5.5 Upon the happening of an Event of Default hereunder, Mortgagee shall
have the remedies of a secured party under the Code, including, without
limitation, the right to take immediate and exclusive possession of the
Collateral, or any part thereof, and for that purpose may, so far as Mortgagor
can give authority therefor, with judicial process, enter (if this can be done
without breach of the peace) upon any place where the Collateral or any part
thereof may be situated and remove the same therefrom (provided that if the
Collateral is affixed to real estate, then such removal shall be subject to the
conditions stated in the Code). Mortgagee shall be entitled to hold, maintain,
preserve, and prepare the Collateral for sale, until disposed of, or may propose
to retain the Collateral subject to Xxxxxxxxx's right of redemption in
satisfaction of Xxxxxxxxx's Obligations, as provided in the Code. Mortgagee may
render the Collateral unusable without removal and may dispose of the Collateral
on the premises. Mortgagee may require Mortgagor to assemble the Collateral and
make it available to Mortgagee for its possession at a place, reasonably
convenient to both parties to be designated by Mortgagee. Mortgagee will give
Mortgagor at least ten (10) days notice of the time and place of any public sale
of the Collateral or of the time after which any private sale or any other
intended disposition thereof is made. The requirements of reasonable notice
shall be met if such notice is mailed, by certified United States mail, postage
prepaid, to the address of Mortgagor set forth above at least ten (10) days
before the time of the sale or disposition. Mortgagee may buy at any public sale
and, if the Collateral is of a type customarily sold in a recognized market or
is of a type which is the subject of widely distributed standard price
quotations, Mortgagee may buy at private sale. Any such sale may be held as part
of and in conjunction with any foreclosure sale of the Mortgaged Property (the
Mortgaged Property, including the Collateral to be sold as one lot if Mortgagee
so elects). The net proceeds realized upon any such disposition, after deduction
for the reasonable expenses of retaking, holding, preparing for sale, selling,
or the like and reasonable attorneys' fees and legal expenses incurred by
Mortgagee, shall be applied against the Obligations hereby secured in such order
or manner as Mortgagee shall select. Mortgagee will account to Mortgagor for any
surplus realized on such disposition.
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5.6 The terms and provisions contained in this Paragraph 5, unless the
context otherwise requires, shall have the meanings and be construed as provided
in the Code.
5.7 This Mortgage is intended to be a financing statement within the
purview of Section 9-502 of the Code with respect to the Collateral and the
goods described herein, which goods are or may become fixtures relating to the
premises. The addresses of Mortgagor (Debtor) and Mortgagee (Secured Party) are
set forth above. This Mortgage is to be filed for record with the Register of
Deeds of Milwaukee County, Wisconsin. Mortgagor is the record owner of the
Mortgaged Property.
5.8 To the extent permitted by applicable law, the security interest
created hereby specifically is intended to cover and include any leases of the
Mortgaged Property between Mortgagor, as lessor, and various tenants named
therein, as lessees, including all extended terms and all extensions and
renewals of the terms thereof, as well as any amendments to or replacement of
said leases, together with all of the right, title, and interest of Xxxxxxxxx,
as lessor thereunder, including, without limiting the generality of the
foregoing, the present and continuing right to make claim for, collect, receive,
and receipt for any and all of the rents, income, revenues, issues and profits,
and moneys payable as damages or in lieu of the rent and moneys payable as the
purchase price of the premises or any part thereof or of awards or claims for
money and other sums of money payable or receivable thereunder, howsoever
payable, and to bring actions and proceedings thereunder or for the enforcement
thereof, and to do any and all things which Mortgagor or any lessor is or may
become entitled to do under the leases.
5.9 Mortgagor hereby assigns to Mortgagee all of the Mortgagor's interest
in all leases and rents related to the Mortgaged Property and all extensions and
amendments thereto, as further security for payments of the Obligations.
Mortgagor grants to Mortgagee the present right to enter the Mortgaged Property
and to let the Mortgaged Property, or any part thereof, and to apply the rents
after payment of all charges and expenses, on account of the Obligations. This
assignment and grant shall continue in effect until the Obligations are paid in
full. Mortgagee hereby agrees not to exercise the right to enter the Mortgaged
Property for the purpose of collecting the rents and Mortgagor shall be entitled
to collect and receive the rents until the occurrence of an Event of Default (as
hereinafter defined); provided that the rents collected and received by
Xxxxxxxxx after the occurrence of an Event of Default shall be deemed collected
and received by Mortgagor in trust for Mortgagee and Mortgagor shall account to
Mortgagee for the full amount of such receipts. Xxxxxxxxx agrees to apply the
rents so received to payment of the Obligations. The right of Mortgagor to
collect and receive the rents in trust for Mortgagee during the continuance of
any Event of Default may be revoked by Mortgagee giving written notice of such
revocation to Mortgagor. This assignment is given as collateral security and the
execution and delivery hereof shall not in any way impair or diminish the
obligations of the Mortgagor, nor shall this assignment impose any obligation on
Mortgagee to perform any provision of any contract pertaining to the Mortgaged
Property or any responsibility for the nonperformance thereof by Mortgagor or
any other person. This assignment is given as a primary pledge and assignment of
the rights described herein and such assignment shall not be deemed secondary to
this Mortgage. Mortgagee shall have the right to exercise any rights under this
assignment before, together with, or after exercising any other rights under
this Mortgage.
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5.10 The provisions contained herein with respect to the security
interests or security agreement rights of Mortgagee are severable interests.
Mortgagee shall have the right to exercise any and all its rights hereunder
pursuant to the provisions of the uniform commercial code of the State of
Wisconsin, with such rights being construed in accordance with such Code and
without waiving or relinquishing any rights which it may have as a mortgagee, it
being intended that this agreement may be utilized separately as a security
agreement (alone), mortgage (alone), or mortgage and security agreement
(combined).
6. If Mortgagee (a) grants any extension of time for forbearance with
respect to the payment of any Obligations secured by this Mortgage; (b) takes
other or additional security for the payment thereof; (c) waives or fails to
exercise any right granted herein or under the Guaranty secured hereby or the
release of any person liable for payment of said obligations; (d) amends or
modifies in any respect any of the terms and provisions hereof or of the
Guaranty secured hereby; then and in any such event, such act or omission to act
shall not release Mortgagor or any surety or guarantors of this Mortgage or of
the Guaranty secured hereby, under any covenant of this Mortgage or of said
Guaranty, nor preclude Mortgagee from exercising any right, power, or privilege
herein granted or intended to be granted in the event of any other default then
made or any subsequent default, nor in any way impair or affect the lien or
priority of this Mortgage.
7. If any one or more of the following events (herein designated as
"Events of Default") shall occur:
7.1 The occurrence of any Event of Default as described in the Credit
Agreement; or
7.2 Default by Xxxxxxxxx in the due observance or performance of any
other covenant, condition, or agreement on Mortgagor's part to be observed or
performed pursuant to the terms and provisions of this Mortgage and such default
shall continue for thirty (30) days after written notice thereof is sent to
Mortgagor by Mortgagee; or
7.3 Any representation or warranty made by Mortgagor herein or with
respect to the Mortgaged Property shall prove untrue in any material respect
when made,
then, and upon the happening of any such event, Mortgagee, at its option and
without notice, may declare the maximum amount which could then or thereafter
become due under the Guaranty immediately due and payable and upon such
declaration all amounts due under the Guaranty, together with interest accrued
thereon at the Default Rate, and other payments, shall become and be due and
payable forthwith, anything in this Mortgage or the Guaranty to the contrary
notwithstanding. Mortgagee thereupon may proceed to protect and enforce its
rights hereunder and under the Guaranty by foreclosure proceedings, or by other
suit in equity, action at law, or other appropriate proceedings, including
actions for the specific performance of any covenant or agreement contained in
this Mortgage or in the Guaranty, or in aid of the exercise of any power granted
in this Mortgage or the Guaranty, or may proceed in any manner to enforce the
payment of amounts due under the Guaranty and any other legal or equitable right
of Mortgagee.
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8. Upon the happening of an Event of Default, then in addition to, and
not to the exclusion of any of the remedies stated above:
8.1 Mortgagee shall be entitled in any judicial proceedings which are
commenced to apply to have a receiver appointed for Mortgagee's benefit to take
possession, management and control of all of the Mortgaged Property and of the
earnings, income, rents, issues, and profits thereof, during such proceedings,
with such other powers as the court making such appointment shall confer.
Xxxxxxxxx hereby irrevocably consents and agrees to such application.
8.2 Mortgagee, either itself or by its agents or attorneys, in its
discretion, may enter upon and take possession of the Mortgaged Property, or any
part or parts thereof, and may exclude Mortgagor and Xxxxxxxxx's agents and
servants wholly therefrom. Having and holding the same, Mortgagee may take over
and complete construction of any improvements to the real estate, all at the
risk, cost, and expense of Mortgagor. Mortgagee may assume or reject any
contracts entered into by Mortgagor in connection with the same, subject to the
rights of other parties to such contracts, and may (a) enter into additional or
different contracts for services, labor, and for materials required, in the
judgment of the Mortgagee, to complete the said construction, and (b) pay,
compromise and settle all claims in connection with the same. All sums expended
by Mortgagee in completing such construction shall be deemed advances made by
Mortgagee to Mortgagor, and Xxxxxxxxx shall be liable to Mortgagee for the
repayment of such sums, together with interest on such amounts from the date of
their expenditure at the Default Rate. Mortgagee, in its discretion, at any time
may abandon work on the premises after having commenced such work, and may
recommence such work at any time, it being understood that nothing in this
paragraph shall impose any obligation on Mortgagee either to complete or not to
complete such construction. For the purpose of carrying out the provisions of
this paragraph, Xxxxxxxxx irrevocably appoints Mortgagee as Xxxxxxxxx's
attorney-in-fact, with full power of substitution, to execute and deliver all
such documents, pay and receive such funds, and take such action as may be
necessary, in the judgment of Mortgagee, to complete such construction of
improvements on the Mortgaged Property.
Mortgagee further may (i) use, operate, manage, and control the Mortgaged
Property or any part thereof, and conduct the business thereof (either itself or
by its attorneys and agents) including letting the same, (ii) collect any and
all rents, issues, and profits due or to become due, without prejudice of its
rights to foreclosure, to appointment of a receiver, and other rights, and (iii)
from time to time, either by purchase, repair, or construction, maintain,
restore, and insure and keep insured, the buildings, structures, improvements,
fixtures, machinery, equipment, and other property constituting a part of or
used in connection with the Mortgaged Property. After paying all of the expenses
of operating the premises and said property, Mortgagee shall apply the moneys
arising therefrom to the payment of all amounts due under the Guaranty in the
order selected by Mortgagee, with interest on overdue amounts at the Default
Rate, and to payment of any other Obligations secured hereby.
8.3 Upon the happening of an Event of Default, Mortgagee, at its option,
may perform any covenant or agreement of Mortgagor in this Mortgage or the
Guaranty. The cost
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thereof, with interest at the Default Rate, immediately shall be due from
Mortgagor to Mortgagee and shall be secured by this Mortgage.
8.4 In case it becomes necessary for Mortgagee to commence proceedings to
foreclose this Mortgage or to commence any other suit in equity, action at law,
or other appropriate proceeding, or to enforce its rights under this Mortgage or
the Guaranty, Xxxxxxxxx agrees to pay to Mortgagee all costs of such suit,
action, or proceeding as well as all reasonable expenses incurred in procuring
and continuing title insurance and the reasonable fees of Mortgagee's attorneys
in connection therewith, which costs and fees shall be included in the judgment
in any such suit, action, or proceeding.
8.5 No remedy herein conferred upon or otherwise available to Mortgagee
is intended to be or shall be construed to be exclusive of any other remedy or
remedies; but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder, or now or hereafter existing at
law or in equity or by statute. No delay or omission to exercise any right or
power accruing upon any default shall impair any such right or power, or shall
be construed to be a waiver of any such default, or an acquiescence therein.
9. The following terms and conditions regarding environmental matters and
the Mortgaged Property are included in this Mortgage:
9.1 For the purpose of this Mortgage, the phrase "Regulated Materials"
shall mean those materials or substances defined as "hazardous substances,"
"hazardous materials," "hazardous waste," "toxic substances," "toxic pollutant"
or other similar designations under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. ss. 9601, et seq.,
the Resource Conservation and Recovery Act, as amended, 42 U.S.C. ss. 6901, et
seq., the Hazardous Materials Transportation Act, 49 U.S.C. ss. 1801, et seq.,
or regulations promulgated pursuant thereto or under any other state or federal
law or regulation pertaining to the protection of persons or the environment.
Also for purposes of this Mortgage, the phrase "Governmental Agency or Agencies"
means any federal, state, local or foreign government, political subdivision,
court, agency or other entity, body, organization or group exercising any
executive, legislative, judicial, quasi-judicial, regulatory or administrative
function of government.
9.2 The Mortgagor hereby represents to the Mortgagee that:
(a) To the best of Xxxxxxxxx's knowledge, other than as set forth on
Exhibit B and for Regulated Materials stored or used in the ordinary course of
Mortgagor's operations and which are not subject to any remedial action (i) no
Regulated Material currently exists on the Mortgaged Property or in its soil or
groundwater and (ii) the Mortgaged Property has never been used either by
previous owners or occupants (to the best of Mortgagor's knowledge) or by the
Mortgagor or any tenants to generate, manufacture, refine, transport, treat,
store, handle or dispose of any Regulated Material in violation of any
applicable law;
(b) to the best of Xxxxxxxxx's knowledge no portion of any building on
the Mortgaged Property contains, and no building on the Mortgaged Property will
be constructed
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with, any Regulated Material, including but not limited to asbestos,
asbestos-containing materials, urea formaldehyde insulation or any other
chemicals or substance which has been determined to be a hazard to health and
environment except in accordance with all applicable laws;
(c) to the best of Mortgagor's knowledge, there are no electrical
transformers or other equipment which have dielectric fluid containing
polychlorinated biphenyls (PCBs) located in, on or under the Mortgaged Property;
(d) to the best of Xxxxxxxxx's knowledge, the Mortgaged Property does not
contain any underground storage tanks; and
(e) the Mortgagor has not received nor does it have any knowledge of any
summons, citation, directive, letter or other communication, written or oral,
from any Governmental Agency or Agencies concerning (i) the existence of any
Regulated Materials on the Mortgaged Property or in the immediate vicinity which
it reasonably believes would affect the Mortgaged Property or (ii) any
intentional or unintentional action or omission on the part of the Mortgagor or
any occupant of the Mortgaged Property resulting in the releasing, spilling,
leaking, pumping, pouring, emitting, emptying, or dumping of Regulated Materials
onto the Mortgaged Property or into waters or other lands.
9.3 The Mortgagor hereby covenants to the Mortgagee that:
(a) the Mortgagor shall (i) comply with all federal, state and local
laws, rules, regulations and orders with respect to the discharge, generation,
removal, transportation, storage and handling of Regulated Materials, (ii)
remove or remediate, as required by the applicable Governmental Agency or
Agencies, any Regulated Materials immediately upon discovery of the same to the
extent Mortgagee requires, except for those Regulated Materials used in the
ordinary course of Mortgagor's business and in accordance with applicable law
and (iii) pay or cause to be paid all costs associated with such removal or
remediation;
(b) the Mortgagor shall keep the Mortgaged Property free of any lien
imposed pursuant to any state or federal law, rule, regulation or order in
connection with the existence of Regulated Materials on the Mortgaged Property;
(c) the Mortgagor shall not install or permit to be installed or to exist
in or on the Mortgaged Property any Regulated Materials including, but not
limited to, asbestos, asbestos-containing materials, urea formaldehyde
insulation or any other chemical or substance which has been determined to be a
hazard to health and environment except for amounts stored or used in the
ordinary course of Mortgagor's business in compliance with all applicable laws
or for which no remedial action is required;
(d) the Mortgagor shall not cause or permit to exist as a result of an
intentional or unintentional act or omission on the part of the Mortgagor or any
occupant of the Mortgaged Property, a releasing, spilling, leaking, pumping,
emitting, pouring, emptying or dumping of any Regulated Materials onto the
Mortgaged Property or into waters or other lands
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in violation of applicable law or which could give rise to any remedial or
investigative obligation under any applicable law; and
(e) the Mortgagor shall promptly provide to Mortgagee a copy of any
summons, citation, directive, letter or other communication which it receives
from any Government Agency or Agencies concerning any of the matters of a kind
described in Section 9.2(e) above.
9.4 It shall constitute an Event of Default hereunder and the Mortgagee
shall be entitled to exercise all remedies available to it hereunder if:
(a) any of the Mortgagor's representations contained in Section 9.2
hereof prove to be false, inaccurate or misleading in any material respect;
(b) The Mortgagor shall fail to comply with the covenants contained in
Section 9.3 hereof within thirty (30) days (or such longer period as is needed
to cure such failure; provided Mortgagor diligently pursues such cure until
completion) after Mortgagee mails notice on non-compliance to Mortgagor thereof;
(c) any Regulated Materials are hereafter found to exist on the Mortgaged
Property or in its soil or groundwater in violation of any applicable law and
the Mortgagor shall fail within thirty (30) days (or such longer period as is
needed to cure such failure; provided Mortgagor diligently pursues such cure
until completion) after Mortgagee mails notice to Mortgagor thereof to remove or
remediate the same from the Mortgaged Property; or
(d) any summons, citation, directive, letter or other communication,
written or oral, shall be issued by any Governmental Agency or Agencies
concerning the matters described in Section 9.2(e)(i) or (ii) above and
Xxxxxxxxx fails to cure the condition occasioning the same within a time limit
set forth by the Governmental Agency.
The Mortgagor hereby grants the Mortgagee and its employees and agents an
irrevocable and non-exclusive license to enter the Mortgaged Property in order
to inspect, conduct testing and remove hazardous wastes or substances; provided,
however, that in the event Mortgagor or any Governmental Agency shall undertake
environmental investigation or remediation and shall provide Mortgagee with all
findings and reports, Mortgagee shall not duplicate such investigation or
remediation without reasonable cause. All costs of inspection, testing and
removal by Mortgagee shall be secured by this Mortgage and shall constitute
additional indebtedness secured hereby.
9.5 The Mortgagor hereby agrees to defend, indemnify and hold harmless
the Mortgagee, its directors, officers, employees, agents, contractors,
subcontractors, licensees, invitees, successors and assigns ("Indemnified
Parties") from and against any and all claims, losses, damages, liabilities,
judgments, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred by the Indemnified Parties as a result of
or in connection with the presence or removal of any Regulated Materials in or
from the Mortgaged Property or any liabilities resulting from actions against
the Mortgagee by third parties related to
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such Regulated Materials. The Mortgagor shall bear, pay and discharge, as and
when the same become due and payable, any and all such judgments or claims for
damages, penalties or otherwise, against the Indemnified Parties, shall hold the
Indemnified Parties harmless against all claims, losses, damages, liabilities,
costs and expenses, and shall assume the burden and expense of defending all
suits, administrative proceedings, and negotiations of any description with any
and all persons, political subdivisions or Governmental Agency or Agencies
arising out of any of the occurrences set forth in this Section 9.
9.6 The representations, covenants and indemnifications given by
Mortgagor to Mortgagee in this Section 9 shall be a separate agreement between
the parties, and shall survive any termination, satisfaction or foreclosure of
the Mortgage or the acceptance of a deed in lieu of foreclosure.
10. This Mortgage shall secure payment of all amounts due and which may
become due under the Guaranty. This Mortgage also shall secure any and all
future advances made hereunder, including additional sums which hereafter may be
loaned and evidenced by a note secured by this Mortgage, and all costs, taxes,
assessments, insurance, expenses, and attorneys' fees which Mortgagee may make,
pay or incur under any provision of this instrument for the protection of
Mortgagee or any of the rights of Mortgagee in connection with the Mortgaged
Property, costs of foreclosure proceedings commenced and subsequently abandoned,
or any dispute or litigation in which Mortgagee may become involved by reason of
or arising out of this Mortgage, all of which sums shall be secured by this
Mortgage, including the extent to which the aggregate of such sums may exceed
the principal amount stated herein, with interest thereon at the Default Rate.
11. Xxxxxxxxx agrees to the provisions of Section 846.103 of the
Wisconsin Statutes, or any successor provision, permitting Mortgagee, at its
option and in its sole and absolute discretion, upon waiving the right to
judgment for deficiency, to hold a foreclosure sale of the Mortgaged Property
three (3) months after a foreclosure judgment is entered.
12. In the event any terms or provisions of this Mortgage shall be
declared to be invalid or unenforceable by a court of competent jurisdiction,
the remaining provisions and conditions of this Mortgage, or the application of
such to persons or circumstances other than those to which it has been declared
invalid or unenforceable, shall not be affected thereby, and shall remain in
full force and effect and shall be valid and enforceable to the fullest extent
permitted by law.
13. All covenants, agreements, and conditions contained in this Mortgage
by or on behalf of any party hereto shall bind and benefit the respective
successors, and assigns of Mortgagor and Mortgagee, to the extent assignable.
This Mortgage shall not be transferable or assumable by any transferee or
grantee of the Mortgaged Property, without the prior written consent of
Mortgagee. This Mortgage shall be construed and enforced in accordance with the
internal laws of the State of Wisconsin.
14. THE MORTGAGOR AND THE MORTGAGEE (BY ITS ACCEPTANCE HEREOF) HEREBY
KNOWINGLY AND VOLUNTARILY, WAIVE THE RIGHT EACH OF
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THEM MAY HAVE TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM BASED ON OR
ARISING OUT OF OR IN CONNECTION WITH THIS MORTGAGE, ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ANY OTHER ACTION OF
ANY PARTY.
15. The Mortgagor and the Mortgagee by accepting delivery of this
Mortgage, each agree to submit to personal jurisdiction in the State of
Wisconsin in any action or proceeding arising out of this Mortgage or the
Guaranty and, in furtherance of such agreement, the Mortgagor and the Mortgagee
each agree and consent that, without limiting other methods of obtaining
jurisdiction, personal jurisdiction over the Mortgagor or the Mortgagee in any
such action or proceeding may be obtained within the jurisdiction of any court
located in Wisconsin and that any process or notice of motion or other
application to any such court in connection with any such action or proceeding
may be served upon the Mortgagor or the Mortgagee by registered mail to or by
personal service at the last known address of the Mortgagor or the Mortgagee,
whether such address be within or without the jurisdiction of any such court.
The Mortgagor, and the Mortgagee by accepting delivery of this Mortgage, each
consent that venue for any legal proceeding related to enforcement of this
Mortgage shall be Milwaukee County, Wisconsin.
16. The Mortgagee's rights under this Mortgage are subordinate to the
rights of Thrivent Financial for Lutherans ("Thrivent") to the extent set forth
in that certain Intercreditor Agreement dated October 7, 2002 between Mortgagee
and Thrivent.
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IN WITNESS WHEREOF, Xxxxxxxxx has executed this instrument on the date
first above written.
MIDWEST EXPRESS AIRLINES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Its: CFO
-------------------------------
17
STATE OF WISCONSIN )
) SS.
COUNTY OF MILWAUKEE )
The foregoing instrument was acknowledged before me this 31st day of
October, 2002, by the above-named Xxxxxx X. Xxxxxxx, the CFO of Midwest Express
Airlines, Inc., to me known to be the person who executed the foregoing
instrument and acknowledged the same on behalf of said corporation.
/s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
------------------------------
Notary Public Wisconsin
My Commission permanent
----------------------
This instrument was drafted by and,
after recording, should be returned to:
Xxxxxxx X. Xxxxxx
Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
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EXHIBIT A
LEGAL DESCRIPTION
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EXHIBIT B
ENVIRONMENTAL
A limited area of potential soil contamination (approximately 3 foot by 12 foot
in area) has been identified near the southeast corner of the east building
parking lot. The potential soil contamination is a result of residual levels of
gasoline associated with small-scale fire fighting practice previously conducted
in this vicinity.
20
