Exhibti 10.9
This Document Prepared By and
After Recording Return To:
Xxxxx X. Xxxxxx, Esq.
Xxxxxx, Xxxxxxxx and Xxxxxx, P.A.
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT (the "Mortgage") is made
this 12th day of March, 2002, between __________________________ ("Mortgagor"),
whose address is 000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xx. Xxxxxxxxxx, Xxxxxxx
00000, and XXXX FINANCE CO, LLC, a Delaware limited liability company (the
"Mortgagee") whose address is 0000 Xxxxx xxx Xxx Xxxxx, Xxxxxxx, XX 00000.
RECITALS:
Mortgagor entered into that certain Loan and Security
Agreement in favor of Mortgagee, dated March 12, 2002 (the "Loan Agreement"),
related to indebtedness in the current principal amount of $1,600,000 (the
"Loan"), which, together with interest and other charges due thereon, the final
payment of which, if not sooner called by Mortgagee, is due as provided in the
Loan Agreement. (The Loan Agreement and all other documents executed in
connection with the Loan Agreement, including, but not limited to, the
promissory note, guarantees, other mortgages, deeds of trust, security
agreements, financing statements, assignments of rents, and guaranties, shall be
collectively referred to as the "Loan Documents").
NOW, THEREFORE, to secure the performance by Mortgagor of all
covenants and conditions of the Loan Documents, including the payment of
interest, principal, fees, other charges and expenses, and all existing or
future notes, loans, guaranties, or other indebtedness owed by Mortgagor to
Mortgagee, including, without limitation, all future advances, obligatory or
otherwise, notwithstanding that such indebtedness is secured by other mortgages,
and including all expenses or obligations incurred by Mortgagee pursuant to any
existing or future mortgage, loan or security agreement (collectively, the
"Obligations"), and in order to charge the properties, interests, and rights
hereinafter described with such payment and performance, and for and in
consideration of the sum of Ten and 00/100 Dollars ($10.00), Mortgagor does
hereby mortgage to Mortgagee and, where applicable, grant a security interest
in:
I. THE MORTGAGED PROPERTY
(A) All of the land in the County of _________, State of
________, described on Exhibit A attached hereto and made a part hereof, to have
and to hold the same, together with each and every tenement, hereditament,
easement, right, power, privilege, immunity, and appurtenance thereunto
belonging or in anywise appertaining, and the reversion and reversions,
remainder and remainders, and also the estate, right, title, interest,
homestead, right of dower, separate estate, property, possession, and claim
whatsoever in law as well as in equity of Mortgagor of, in, and to the same in
every part and parcel thereof unto Mortgagee in fee simple. The real property
described on Exhibit A is commercial property and does not constitute the
homestead of any individual.
(B) (i) All personal property and fixtures now or hereafter
affixed to or located on the property described in Paragraph A hereof which is
deemed to be fixtures and a part of the real property under applicable law; (ii)
all articles of personal property and all materials delivered to the property
described in Paragraph A hereof for use in any way thereof, and owned by
Mortgagor; (iii) all contract rights, general intangibles, actions, and rights
in action, including, without limitation, all rights to insurance policies and
proceeds; (iv) all equipment including, without limitation, parts, accessories,
attachments, special tools, additions, and accessions thereto; and (v) all
proceeds, products, replacements, additions, substitutions, renewals, and
accessions of any of the foregoing items. This Mortgage is a self-operative
security agreement with respect to the above described property, but Mortgagor
agrees to execute and deliver on demand such other security agreements,
financing statements, and other instruments as Mortgagee may request in order to
perfect its security interest or to impose the lien hereof more specifically
upon any of such property. Mortgagee shall have all the rights and remedies, in
addition to those specified herein, of a secured party under the ________
Uniform Commercial Code.
(C) All rents, issues, profits, revenue, income, accounts,
proceeds, and other benefits flowing or derived from the property described in
Paragraphs (A) and (B) hereof, provided, however, that permission is hereby
given to Mortgagor so long as no default has occurred hereunder, to collect,
receive, and use such benefits from the property as they become due and payable,
but not in advance thereof.
Everything referred to in Paragraphs (A), (B), and (C) hereof,
and any additional property hereafter acquired by Mortgagor and subject to the
lien of this Mortgage, or any part of these properties, is herein referred to as
the "Mortgaged Property."
PROVIDED, HOWEVER, that this Mortgage secures a maximum of
$1,600,000.00 of the Obligations of the Mortgagor to the Mortgagee; and
PROVIDED ALWAYS, that if Mortgagor shall pay to Mortgagee all
sums due under the Loan at the time and in the manner stipulated in the Loan
Documents, and in all other instruments securing the Loan, and faithfully
perform all the covenants and agreements in this Mortgage, and in all other
instruments securing the Loan, to be kept, performed, or observed by Mortgagor,
then this Mortgage shall cease and be void.
II. COVENANTS OF MORTGAGOR
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2.1. Compliance with Loan Documents. Mortgagor shall comply
with all provisions hereof, of the Loan Agreement, and of the Loan Documents,
and will promptly pay to Mortgagee the principal with interest thereon, and all
other sums required to be paid by Mortgagor under the Loan and the Loan
Documents.
2.2. Payment of Taxes and Liens. Mortgagor shall pay all
taxes, assessments, liens, levies, liabilities, obligations, and encumbrances of
every nature and kind whether now or hereafter imposed, levied, or assessed on
the Mortgaged Property, this Mortgage, or the indebtedness secured hereby.
Without limiting the generality of the foregoing, the Mortgagor shall pay all
obligations secured by Mortgages having priority hereto, and an event of default
upon such prior encumbrances shall be a default hereunder. All such payments
shall be made when due and payable before they become delinquent and before any
interest attaches or any penalty is incurred; provided, however, that the
Mortgagor may withhold tax payments which are contested in good faith by
appropriate judicial or administrative proceedings for so long as such tax
delinquency does not adversely affect the mortgage or lien hereunder. Insofar as
any such lien or encumbrance is of record, the same shall be promptly satisfied
or released and evidence of such satisfaction or release shall be given to
Mortgagee.
2.3. Insurance. Mortgagor shall keep the improvements now
existing or hereafter erected on the Mortgaged Property and all parts of the
Mortgaged Property insured as may be required from time to time by Mortgagee
against loss by fire or other casualty and contingency in such amounts and for
such periods as may be required by Mortgagee, and to pay promptly, when due, all
premiums for such insurance. All such insurance shall be carried with companies
approved by Mortgagee and the policy and renewals thereof shall be held by
Mortgagee and have attached thereto loss payable clauses in favor of and in form
acceptable to Mortgagee. In the event of loss, Mortgagor shall give immediate
notice by mail to Mortgagee and Mortgagee may make proof of loss if not made
promptly by Mortgagor, and each insurance company concerned is hereby authorized
and directed to make payments for such loss directly to Mortgagee instead of to
Mortgagor, or to Mortgagor and Mortgagee jointly, and the insurance proceeds or
any part thereof may be applied by Mortgagee, at its option, after deducting
therefrom all of its expenses, including, without limitation, attorney's fees
and costs, either to reduction of the indebtedness hereby secured or to the
restoration or repair of the property damaged. In the event of foreclosure of
this Mortgage or other transfer of title to the Mortgaged Property in
extinguishment of the indebtedness secured hereby, all right, title, and
interest of Mortgagor in and to any insurance policies then in force shall pass
to the purchaser or grantee. Mortgagor shall deliver to Mortgagee a certificate
or certificates of insurance evidencing the foregoing coverages in force and
effect, naming Mortgagee an additional loss payee and providing the insurer
shall give Mortgagee not less than 30 days notice of cancellation, termination,
or non-renewal.
2.4 Condemnation. If all or any material part of the Mortgaged
Property shall be damaged or taken through condemnation (which term when used
herein shall include any damage or taking by any governmental authority or any
other authority authorized by the laws of the State of ________ or the United
States of America to so damage or take, and any transfer by private sale in lieu
thereof), either temporarily or permanently, then the maximum outstanding
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indebtedness and other sums secured hereby shall, at the option of Mortgagee,
become immediately due and payable. Mortgagee is hereby authorized, at its
option, to commence, appear in, and prosecute, in its own or Mortgagor's name,
any action, or proceeding relating to any condemnation, and to settle or
compromise any claim in connection therewith. All such compensation, awards,
damages, claims, rights of action, and proceeds, and any other payments or
relief, and the rights thereto, are hereby assigned by Mortgagor to Mortgagee,
who, after deducting therefrom any amounts due upon senior encumbrances, and all
of its expenses, including attorney's fees and costs, may release any monies so
received by it for the benefit of Mortgagor, without affecting the lien of this
Mortgage or may apply the same, in such manner as Mortgagee shall determine, to
the reduction of the sums secured hereby, this Mortgage, or any other
instruments securing the Loan. Any balance of such monies then remaining shall
be paid to Mortgagor. Mortgagor agrees to execute such further assignments of
any compensations, awards, damages, claims, rights of action, and proceeds as
Mortgagee may require. For the purposes of this paragraph, a "material part"
shall mean such portion of the Mortgaged Property that the removal of which
would render it impracticable to be used for its intended purpose.
2.5 Care of Mortgaged Property. Mortgagor shall not remove or
demolish any building or other property forming a part of the Mortgaged Property
without the prior written consent of Mortgagee, nor permit, commit, or suffer
any waste, impairment, or deterioration of the Mortgaged Property or any part
thereof, and shall keep the same and the improvements thereof in good condition
and repair. Mortgagor shall notify Mortgagee in writing within five (5) days of
any injury, damage, or impairment of or occurring on the Mortgaged Property
including, without limitation, serious injury or loss by death or otherwise
occurring on the Mortgaged Property. Mortgagee may, at Mortgagee's discretion,
have the Mortgaged Property inspected at the time.
2.6 Mortgagee's Right to Make Certain Payments. In the event
Mortgagor fails to pay and/or discharge the taxes, assessments, liens, levies,
liabilities, obligations, and encumbrances, or fails to keep the Mortgaged
Property insured or to deliver the policies, premiums paid, or fails to repair
the Mortgaged Property as herein agreed, Mortgagee is hereby authorized, at its
election, to pay and/or discharge the taxes, assessments, liens, levies,
liabilities, obligations, and encumbrances, or any part thereof, without being
required to investigate the validity and/or necessity thereof, and without
Mortgagee waiving or affecting any option, lien, equity, or right under or by
virtue of this Mortgage. The full amount of each and every such payment made by
Mortgagee shall be due and payable by Mortgagor within five (5) days of written
demand and shall bear interest from the date thereof until paid at the Default
Rate, as hereinafter defined, and together with such interest, shall be secured
by the lien of this Mortgage. Nothing herein contained shall be construed as
requiring Mortgagee to advance or expend monies for any of the purposes
mentioned in this Paragraph.
2.7 Payment of Expenses. Mortgagor shall pay all of the costs,
charges, and expenses, including, without limitation, reasonable attorney's fees
and costs, disbursements, and costs of abstracts of title, incurred or paid at
any time by Mortgagee because and/or in the event of the failure on the part of
Mortgagor promptly and fully to perform, comply with, and abide by each and
every stipulation, agreement, condition, and covenant of the Loan Documents.
Such
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costs, charges, and expenses shall be immediately due and payable, without
notice, demand, attempt to collect, or suit pending. The full amount of each and
every payment shall bear interest from the date thereof until paid at the
Default Rate, as hereinafter defined. All such costs, charges and expenses so
incurred or paid, together with such interest, shall be secured by the lien of
this Mortgage.
2.8. No Transfer. Mortgagor covenants and agrees not to sell,
convey, transfer, lease, or further encumber any interest in or any part of the
Mortgaged Property without the prior written consent of Mortgagee, and any such
sale, conveyance, transfer, lease, or encumbrance made without Mortgagee's prior
written consent shall be null and void. If any person should obtain an interest
in all or any part of the Mortgaged Property pursuant to the execution or
enforcement of any lien, security interest, or other right, directly or
indirectly, whether superior, equal or subordinate to this Mortgage or the lien
hereof, such event shall be deemed to be a transfer by Mortgagor and a default
hereunder.
2.9. After Acquired Property. The lien of this Mortgage will
automatically attach, without further act, to all after acquired property,
whether real or personal, located in or on, or attached to, or used or intended
to be used in connection with or with the operation of the Mortgaged Property.
2.10. Additional Documents. At any time and from time to time,
upon Mortgagee's request, Mortgagor shall make, execute, and deliver or cause to
be made, executed and delivered to Mortgagee and, where appropriate, shall cause
to be recorded or filed and from time to time thereafter to be rerecorded or
refiled at such time and in such offices and places as shall be deemed desirable
by Mortgagee any and all such further mortgages, instruments of further
assurance, certificates, and other documents as Mortgagee may consider necessary
or desirable in order to effectuate, complete, enlarge, or perfect, or to
continue and preserve the obligations of Mortgagor under the Loan Documents, and
the lien of this Mortgage upon all of the Mortgaged Property, whether now owned
or hereafter acquired by Mortgagor. Upon failure by Mortgagor to do so,
Mortgagee may make, execute, record, file, rerecord, refile any and all such
mortgages, instruments, certificates, and documents for and in the name of
Mortgagor, and Mortgagor hereby irrevocably appoints Mortgagee as the agent and
attorney-in-fact of Mortgagor to do so.
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III. EVENTS OF DEFAULT
Any one of the following shall constitute an Event of Default:
(a) Failure by Mortgagor to pay to Lender any amount when due
under the Loan Documents, including but not limited to the payment of principal
or interest due under the Loan and any fees, other charges or expenses payable
under the Loan Agreement.
(b) There is an Event of Default as defined in the Loan
Agreement.
(c) Failure by Mortgagor to duly keep, perform, and observe
any covenant, condition, or agreement in the Loan Documents for a period of
thirty (30) days after Mortgagee gives written notice specifying the failure,
except for any payment obligations covered under clause (a) above for which
there shall be no requirement to give notice or opportunity to cure.
(d) If Mortgagor or any guarantor of the Loan (i) files a
voluntary petition in bankruptcy, or (ii) is adjudicated as bankrupt or
insolvent, or (iii) files any petition or answer seeking or acquiescing in any
reorganization, management, composition, readjustment, liquidation, dissolution,
or similar relief for itself under any law relating to bankruptcy, insolvency,
or other relief for debtors, or (iv) seeks, consents to, or acquiesces in the
appointment of any trustee, receiver, master, or liquidator of itself or of all
of any part of the Mortgaged Property, or (v) makes any general assignment for
the benefit of creditors, or (vi) makes any admission in writing of its
inability to pay its debts generally as they become due; or (vii) becomes
subject to any order, judgment, or decree which involves a court arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under any
present or future federal, state, or other statute, law, or regulation relating
to bankruptcy, insolvency, or other relief for the debtors, which order,
judgment, or decree remains unvacated and unstayed for an aggregate period of
sixty (60) days, whether or not consecutive, from the date of entry thereof; or
(viii) any trustee, receiver, or liquidator of Mortgagor or of any part of the
Mortgaged Property is appointed without the prior written consent of Mortgagee,
which appointment shall remain unvacated and unstayed for an aggregate of sixty
(60) days, whether or not consecutive.
(e) Any breach of any warranty or material untruth of any
representation of Mortgagor contained in the Loan Documents.
(f) An event of default under any existing or future notes,
loans, advances, guarantee, or other indebtedness owed to the Mortgagee by the
Mortgagor, or any or either of them, or under any instrument securing such
indebtedness.
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IV. REMEDIES OF MORTGAGEE
4.1. Acceleration. If an Event of Default shall have occurred,
which has not been cured within the applicable cure period, Mortgagee may
declare the outstanding principal amount of the Loan, the interest accrued
thereon, and all other sums secured hereby, to be due and payable without
demand, notice, or presentment for payment.
4.2. Other Remedies. If an Event of Default shall have
occurred, Mortgagee may proceed by suit or suits at law or in equity or by any
other appropriate proceeding or remedy; (a) to enforce payment of the Loan or
the performance of any term hereof or any other right; (b) to foreclose this
Mortgage and to sell, as an entirety or in separate lots or parcels, the
Mortgaged Property under the judgment or decree of a court or courts of
competent jurisdiction; (c) to collect all rents, issues, profits, revenues,
income, accounts, proceeds, or other benefits from the Mortgaged Property; (d)
to seek appointment of a receiver to enter upon and take possession of the
Mortgaged Property and to collect all rents, issues, profits, revenues, income,
accounts or other benefits thereof and apply the same as the court may direct,
and such receiver shall have all rights and powers permitted under law; and (e)
to pursue any other remedy available to it, including taking possession of the
Mortgaged Property without notice or hearing to Mortgagor. Mortgagee shall take
action either by such proceedings or by the exercise of its power with respect
to entry or taking possession, or both, as Mortgagee may determine.
4.3. No Waiver. No delay or omission of Mortgagee or of any
owner and holder of the Loan and the Loan Documents to exercise any right,
power, or remedy accruing upon any Event of Default shall exhaust or impair any
such right, power, or remedy to be construed as a waiver of any such Event of
Default or constitute acquiescence therein.
4.4. Non-Exclusive Remedies. No right, power, or remedy
conferred upon or reserved to Mortgagee by the Loan Documents, is exclusive of
any other right, power or remedy of Mortgagee, but each and every such right,
power and remedy shall be cumulative and concurrent and shall be in addition to
any other right, power or remedy given hereunder, under the Loan Documents, or
now or hereafter existing at law, in equity, or by statute.
V. MISCELLANEOUS
5.1. Successors and Assigns Bound. Whenever one of the parties
hereto is named or referred to herein, the heirs, personal representatives,
successors, and assigns of such party shall be included, and all covenants and
agreements contained in this Mortgage, by or on behalf of Mortgagor or
Mortgagee, shall bind and inure to the benefit of their respective heirs,
personal representatives, successors and assigns.
5.2 Invalid or Unenforceable. In the event that any of the
covenants, agreements, terms, or provisions contained in the Loan Agreement, or
the other Loan Documents, shall be invalid, illegal, or unenforceable in any
respect, the validity of the remaining covenants, agreements, terms or
provisions contained herein, and in any Loan Document, shall not be in any way
affected, prejudiced, or disturbed thereby.
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5.3. Future Advances. Mortgagor acknowledges that Mortgagee
has no obligation to make any future advances, but should Mortgagee elect, in
its sole discretion, to do so, the provisions of this Section 5.3 shall apply.
This Mortgage is given to secure not only existing indebtedness, but also such
future advances, whether such advances are obligatory or are to be made at the
option of Mortgagee, or otherwise, as are made within twenty (20) years from the
date hereof, to the same extent as if such future advances are made on the date
of the execution of this Mortgage. The total amount of indebtedness that may be
so secured at one time shall not exceed $2,000,000.00, plus interest thereon,
and any disbursements made for the payment of taxes, levies, or insurance on the
Mortgaged Property, with interest on such disbursements at the Default Rate as
hereinafter defined.
5.4. Obligation of Mortgagor. Mortgagor shall pay the cost of
releasing or satisfying this Mortgage of record.
5.5. Default Rate. "Default Rate" has the meaning given to it
in the Loan Agreement.
5.6 Headings. The headings of any paragraph of this Mortgage
are for convenience only and shall not be used to interpret any provision
hereof.
5.7. Modifications. No modification hereof or any agreement
referred to herein shall be binding or enforceable unless in writing and signed
on behalf of the party against whom enforcement is sought.
5.8 Third Parties. No rights are intended to be created
hereunder for the benefit of any third party donee, creditor or incidental
beneficiary.
5.9 Payment of Costs and Expenses. Mortgagor agrees to
reimburse Mortgagee for any of its out-of-pocket costs and expenses (including
without limitation attorneys' fees) arising in connection with the preparation,
negotiation, closing and administration of this Mortgage and the enforcement of
Lender's rights under the Loan Agreement, as amended.
5.10. Costs, Expenses and Taxes. Mortgagor agrees to pay on
demand (a) all costs and expenses (including reasonable attorneys' fees) of
Mortgagee in connection with any extension, modification, waiver or release of
any Loan Documents, and (b) all costs and expenses of Lender incurred in any
work-out, defense or enforcement of any Loan Documents, including reasonable
attorneys' fees and the costs and expenses of environmental or other
consultants. Mortgagor shall pay any stamp, debt, recordation, withholding and
other Taxes payable in connection with any Loan Documents or payments thereunder
(other than Taxes on the overall net income of Mortgagee), and agree to save
Mortgagee harmless from and against all liabilities relating to any Taxes. All
payments by Mortgagor shall be made free and clear of and without deduction for
any Taxes of any nature now or hereafter existing.
5.11. Indemnification by Mortgagor. MORTGAGOR AGREES TO
INDEMNIFY, DEFEND AND HOLD HARMLESS MORTGAGEE, ITS AFFILIATES, AND ALL OF THEIR
DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, ATTORNEYS
AND ASSIGNS, FROM AND AGAINST ANY AND ALL
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LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
CLAIMS, COSTS, EXPENSES AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH
MAY BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY OF THEM IN ANY WAY
RELATING TO OR ARISING OUT OF THIS MORTGAGE, ANY TRANSACTION RELATED HERETO OR
THERETO, OR ANY ACT, OMISSION OR TRANSACTION OF MORTGAGOR, ANY SUBSIDIARY, ANY
GUARANTOR OR ANY OF THEIR AFFILIATES, OR ANY OF THEIR DIRECTORS, OFFICERS,
AGENTS, EMPLOYEES OR REPRESENTATIVES; PROVIDED, HOWEVER, THAT MORTGAGOR SHALL
NOT INDEMNIFY, DEFEND AND HOLD HARMLESS ANY INDEMNIFIED PERSON FOR LOSSES OR
DAMAGES THAT MORTGAGOR PROVES WERE CAUSED BY SUCH PERSON'S WILLFUL MISCONDUCT,
GROSS NEGLIGENCE OR OTHER NEGLIGENCE. MORTGAGEE SHALL NOT BE LIABLE TO MORTGAGOR
OR ANY SUBSIDIARY OR ANY GUARANTOR FOR ANY CONSEQUENTIAL DAMAGES. THIS INDEMNITY
SHALL SURVIVE REPAYMENT OF MORTGAGOR'S OBLIGATIONS TO MORTGAGEE.
5.12. JURY TRIAL WAIVER. BY AGREEING TO BINDING ARBITRATION AS
PROVIDED IN THE LOAN AGREEMENT, THE PARTIES EXECUTING THIS AGREEMENT IRREVOCABLY
AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM, DEFENSE, OR DISPUTE WHATSOEVER, WHETHER BASED IN TORT, CONTRACT,
STATUTE OR OTHERWISE, WHETHER AT LAW OR IN EQUITY. FURTHERMORE, THE PARTIES
IRREVOCABLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF SUCH CLAIM, DEFENSE, OR DISPUTE. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.
[The balance of this page is intentionally left blank.]
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IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be
executed as of the date and year first above written.
WITNESSES [Name of Mortgagor],
a ______ corporation
By:
______________________________ ______________________________
Signature Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
______________________________
Printed Name
______________________________
Signature
______________________________
Printed Name
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ___ day of
March, 2002 by Xxxxxx X. Xxxxxxx, as Chief Executive Officer of
_____________________, a _________ corporation, who is (__) personally known to
me or has (___) produced a _______ driver's license as identification and who
did take an oath.
______________________________
Notary Public, State of Minnesota
Print, Stamp or Type Name:
______________________________
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EXHIBIT A
Legal Description
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