Exhibit 10.8
STATE OF KENTUCKY
COUNTY OF MADISON
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
FIXTURE FILING AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, FIXTURE FILING AND SECURITY
AGREEMENT ("Mortgage"), made and executed this 11th day of July, 2006, by and
among XXXXXXXXX WEAVERS, INC., a Kentucky corporation, whose address is 000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxx 00000, as Party of the First Part,
being hereinafter called "Mortgagor"; and WACHOVIA BANK, NATIONAL ASSOCIATION,
in its capacity as agent for the ratable benefit of the "Lenders" described in
that certain Security Agreement, as defined below (in such capacity, the
"Agent"), whose address is 000 00xx Xxxxxx, XX, Xxxxxxx, Xxxxxxx, 00000, as
Party of the Second Part;
WITNESSETH:
WHEREAS, the Obligors (as defined in the Security Agreement) and Agent have
executed and delivered that certain Security Agreement dated as of the date
hereof (together with all modifications, renewals, extensions, supplements and
replacements from time to time, the "Security Agreement"; capitalized terms used
herein and not otherwise defined shall have the meanings ascribed thereto in the
Security Agreement); and
WHEREAS, it is a condition precedent to the effectiveness of the
termination of the Existing Documents that the Mortgagor shall have executed and
delivered this Mortgage;
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00)
and other valuable consideration, the receipt and sufficiency whereof are hereby
acknowledged, and in order to secure the indebtedness and other obligations of
Mortgagor and the other Obligors, Mortgagor does hereby grant, bargain,
mortgage, sell and convey unto Agent and its successors and assigns the
following:
(A) THE LAND. The land (the "Land") situated in Madison County, Kentucky,
which is described in detail in Schedule A attached hereto and incorporated
herein and made a part of this document for all purposes.
(B) THE IMPROVEMENTS: TOGETHER WITH (1) all the buildings, structures and
improvements of every nature whatsoever now or hereafter situated on the Land,
and (2) all fixtures, machinery, appliances, equipment, furniture and personal
property of every nature whatsoever now or hereafter owned by Mortgagor and
located in or on, attached to, and used or intended to be used in connection
with or with the operation of, the Land, buildings, structures or other
improvements, or in connection with any construction being conducted or which
may be
conducted thereon, and 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 personal property or
fixtures, which, to the fullest extent permitted by law, shall be conclusively
deemed fixtures and a part of the real property encumbered hereby (hereinafter
called the "Improvements").
(C) EASEMENTS AND OTHER PROPERTY INTERESTS: TOGETHER WITH all easements,
rights-of-way, gores of land, streets, ways, alleys, passages, sewer rights,
water courses, water rights and powers, other real property and interests
therein, and all appurtenances whatsoever, in any way belonging, relating or
appertaining to any of the property described in paragraphs (A) and (B) hereof,
or which hereafter shall in any way belong, relate or be appurtenant thereto,
whether now owned or hereafter acquired by Mortgagor by adverse possession or in
any other manner.
(D) TOGETHER WITH (i) all of the estate, right, title and interest of
Mortgagor of, in and to all judgments, insurance proceeds, awards of damages and
settlements hereafter made resulting from condemnation proceedings or the taking
of the property described in paragraphs (A), (B) and (C) hereof or any part
thereof under the power of eminent domain, or for any damage (whether caused by
such taking or otherwise) to the property described in paragraphs (A), (B) and
(C) hereof or any part thereof, or to any rights appurtenant thereto, and all
proceeds of any sales or other disposition of the property described in
paragraphs (A), (B) and (C) hereof or any part thereof; and, subject to Section
5.07 below, Agent is hereby authorized to collect and receive said awards and
proceeds in accordance with this Mortgage and to give proper receipts and
acquittances therefor, and (if it so elects) to apply the same in accordance
with this Mortgage toward the payment of the indebtedness and other sums secured
hereby, notwithstanding the fact that the amount owing thereon may not then be
due and payable; and (ii) all contract rights, general intangibles, actions and
rights in action, including without limitation all rights to insurance proceeds
and unearned premiums arising from or relating to the property described in
paragraphs (A), (B) and (C) above; and (iii) all proceeds, products,
replacements, additions, substitutions, renewals and accessions of and to the
property described in paragraphs (A), (B) and (C).
(E) TOGETHER WITH all rents, income, accounts receivable and other benefits
to which Mortgagor may now or hereafter be entitled from the property described
in paragraphs (A), (B) and (C) hereof to be applied against the indebtedness and
other sums secured hereby, subject to Section 5.07 below; provided, however,
that permission is hereby given to Mortgagor, so long as no Event of Default (as
defined in Section 2.01) has occurred hereunder, to collect and use such rents,
income and other benefits as they become due and payable, but not in advance
thereof. Upon the occurrence of any such Event of Default, the permission hereby
given to Mortgagor to collect such rents, accounts receivable, income and other
benefits from the property described in paragraphs (A), (B) and (C) hereof shall
terminate and such permission shall not be reinstated upon a cure of such Event
of Default without Agent's specific written consent.
The foregoing provisions hereof shall constitute an absolute and present
assignment of the rents, income and other benefits from the property described
in (A), (B) and (C) above, subject, however, to the conditional permission given
to Mortgagor to collect and use such rents,
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income and other benefits as hereinabove provided; and the existence or exercise
of such right of Mortgagor shall not operate to subordinate this assignment to
any subsequent assignment, in whole or in part, by Mortgagor, and any such
subsequent assignment by Mortgagor shall be subject to the rights of Agent
hereunder.
(F) TOGETHER WITH all right, title and interest of Mortgagor in and to any
and all leases now or hereafter on or affecting the property described in
paragraphs (A), (B) and (C) hereof, and all books and records which contain
payments made under the leases and all security therefor.
(G) TOGETHER WITH (i) the Mortgagor's rights further to encumber the
property described in paragraphs (A), (B), (C) and (F) above for debt; and (ii)
all of the Mortgagor's rights to enter into any lease or lease agreement.
All of the property described in paragraphs (A), (B), (C), (D), (E), (F)
and (G) above, and each item of property therein described, is hereinafter
referred to as the "Property".
TO HAVE AND TO HOLD the Property and all parts thereof unto Agent and its
successors and assigns, forever upon the trust, terms and conditions contained
herein.
This Mortgage is executed and delivered by Mortgagor to secure the
following described obligations, liabilities and indebtedness of Mortgagor and
the other Obligors to Agent and Lenders (hereinafter collectively referred as
the "Obligations"):
(a) All loans, advances, indebtedness, obligations and liabilities now
or from time to time hereafter owing by Mortgagor or any other Obligor, to Agent
and Lenders under the Security Agreement, or under any agreement, instrument or
document executed or delivered to Agent and/or Lenders in respect of the
Security Agreement or the transactions contemplated thereby, pursuant to which
the Obligors granted a security interest in, and liens on, all of the Obligors'
assets to secure, among other things, those certain Subordinated Notes in the
maximum aggregate principal amount of $4,000,000, which Subordinated Notes each
have a maturity date of July 11, 2011;
(b) All indebtedness, obligations and liabilities of Mortgagor arising
under this Mortgage;
(c) All advances made by Agent to protect or preserve the Property or
the lien hereof on the Property, or for taxes, assessments, insurance premiums,
or other advances authorized under the terms of this Mortgage (whether or not
Mortgagor remains the owner of the Property at the time of such advance);
(d) Any and all renewals, extensions, modifications, substitutions,
replacements or consolidations of the Subordinated Notes or any other
indebtedness, liabilities and obligations described in paragraphs (a), (b) or
(c) above; and
(e) All other obligations, liabilities and indebtedness of every kind
and character now or hereafter owing by Mortgagor or any other Obligor to Agent
and Lenders, however created, incurred or evidenced, direct or indirect,
absolute or contingent, and whether
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owing under the Security Agreement, this Mortgage or the other Subordinated Note
Documents, including without limitation, all "Obligations" of Mortgagor and each
other Obligor to Agent and Lenders, as such term is defined in the Security
Agreement.
PROVIDED, HOWEVER, that if Mortgagor shall promptly pay or cause to be paid
the Obligations secured hereby in accordance with the terms thereof when the
same shall become due and payable and shall keep, perform and observe, or cause
to be kept, performed and observed, all the terms, conditions and requirements
of the Subordinated Note Documents, including, but not limited to, this
Mortgage, then, upon complete payment and satisfaction thereof, this Mortgage
shall be null and void and of no further force and effect and shall be released
by Agent upon the written request and at the expense of Mortgagor.
ARTICLE ONE
COVENANTS OF MORTGAGOR
Mortgagor covenants and agrees with Agent, or any successor in title as
holder of the Obligations secured hereby, as follows:
1.01 Performance of Subordinated Note Documents. Mortgagor shall perform,
observe and comply with, or cause to be performed, observed and complied with,
all provisions of the Subordinated Note Documents and will promptly pay or cause
to be paid to Agent and Lenders the principal with interest thereon of all
Obligations when payment shall become due.
1.02 General Representations, Covenants and Warranties. Mortgagor
represents, warrants and covenants that (a) subject only to the rights of others
provided in the instruments described in Schedule B attached hereto and
incorporated herein, Mortgagor is seized of an indefeasible estate in fee simple
in, and has good and absolute title to, the Property, and has good right, full
power and lawful authority to encumber the same as provided herein and Agent may
at all times peaceably and quietly enter upon, hold, occupy and enjoy the
Property in accordance with applicable law and with the terms hereof; (b) the
Property is free and clear of all liens, security interests, charges and
encumbrances whatsoever except those described in Schedule B and that certain
Mortgage, Assignment of Leases and Rents, Fixture Filing and Security Agreement
from Mortgagor to The CIT Group/Commercial Services, Inc. ("Senior Creditor"),
of even date herewith and recorded in the real estate records of the County and
State in which the Property is located (the "Senior Mortgage"); (c) Mortgagor
will maintain and preserve the lien of this Mortgage until the Obligations
secured hereby have been paid in full; (d) the Property is improved with those
improvements described in Schedule C attached hereto and incorporated herein and
made a part hereof and has frontage on, and direct access of ingress, egress,
and regress to, the street(s) described therein; (e) electric, gas, sewer, water
facilities and any other necessary utilities are, and at all times hereafter
shall be, available in sufficient capacity to service the Property
satisfactorily, and any easements necessary to the furnishing of such utility
service to Mortgagor have been obtained; and (f) the representations, warranties
and covenants made by Mortgagor in the Subordinated Note Documents are
incorporated herein by reference and made a part hereof.
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1.03 Compliance with Laws. Mortgagor covenants and warrants that the
Property presently complies with and will continue to comply with all applicable
restrictive covenants, applicable zoning and subdivision ordinances and building
codes, all applicable health and environmental laws and regulations and other
applicable laws, rules and regulations which affect the Property and the
operations of Mortgagor on the Property. If Mortgagor receives notice from any
federal, state or other governmental body that it is not in compliance with any
such covenant, ordinance, code, law or regulation, Mortgagor will provide Agent
with a copy of such notice and comply with the provisions of such notice
promptly.
1.04 Taxes Affecting Agent's/Lenders' Interest. If any state, federal,
municipal or other governmental law, order, rule or regulation, passed
subsequent to the date hereof, in any manner changes or modifies existing laws
governing the taxation of deeds of trust, mortgages or debts secured by deeds of
trust, mortgages, or the manner of collecting taxes so as to materially,
adversely affect Agent's or Lenders' security in the Property, subject to
Section 5.07 below, the entire balance of the Obligations secured by this
Mortgage and all interest accrued thereon shall upon commercially reasonable
notice to Mortgagor become due and payable forthwith at the option of Agent.
1.05 Insurance. Subject to Section 5.08 below, Mortgagor shall, at its sole
expense, keep the Property insured in such amounts and against such risks and
damages to the extent required by the Security Agreement. All policies of
insurance shall contain an endorsement, in form and substance acceptable to
Agent, showing loss payable to Agent as its interests appear. Such endorsement,
or an independent instrument delivered to Agent, shall provide that the
insurance companies will give Agent at least thirty (30) days prior written
notice before any such policy or policies of insurance shall be altered or
cancelled and that no act or default of Mortgagor or any other person shall
affect the right of Agent to recover under such policy or policies of insurance
in case of loss or damage.
1.06 Condemnation. Subject to Section 5.07 below, Agent shall be entitled
to all compensation awards, damages, claims, rights of action and proceeds of,
or on account of, any damage or taking through condemnation and 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 right thereto, are included in the Property.
1.07 Care of Property.
(a) Mortgagor shall preserve and maintain the Property in good
condition and repair, ordinary wear and tear excepted. Mortgagor shall not
permit, commit or suffer any waste, impairment or deterioration of the Property
or of any part thereof, and will not take any action which will increase the
risk of fire or other hazard to the Property or to any part thereof.
(b) No part of the Property shall be removed, demolished or altered
without the prior written consent of Agent, except in the ordinary course of
business.
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(c) Agent may enter upon and inspect the Property at any reasonable
time during the life of this Mortgage.
1.08 Further Assurances. At any time and from time to time, upon Agent's
request, Mortgagor shall make, execute and deliver, or cause to be made,
executed and delivered, to Agent and where appropriate shall cause to be
recorded or filed, and from time to time thereafter to be re-recorded and
refiled at such time and in such offices and places as shall be deemed desirable
by Agent, any and all such further deeds of trust, instruments or further
assurance, certificates and other documents as Agent may consider necessary or
desirable in order to effectuate, complete, or perfect, or to continue and
preserve the obligations of Mortgagor under the Subordinated Note Documents and
this Mortgage, and the lien of this Mortgage as a lien upon all of the Property,
whether now owned or hereafter acquired by Mortgagor. Upon any failure by
Mortgagor to do so, Agent may make, execute, record, file, re-record or refile
any and all such deeds of trust, instruments, certificates and documents for and
in the name of Mortgagor, and Mortgagor hereby irrevocably appoints Agent the
agent and attorney-in-fact of Mortgagor to do so.
1.09 Security Agreements and Financing Statements. Mortgagor (as Debtor)
hereby grants to Agent (as Creditor and Secured Party) a security interest in
all fixtures, machinery, appliances, equipment, furniture and personal property
of every nature whatsoever constituting part of the Property.
Mortgagor shall execute any and all such documents, including, without
limitation, financing statements pursuant to the applicable Uniform Commercial
Code, as Agent may reasonably request, to preserve and maintain the priority of
the lien created hereby on property which may be deemed personal property or
fixtures, and shall pay to Agent on demand any expenses incurred by Agent in
connection with the preparation, execution and filing of any such documents.
Mortgagor hereby authorizes and empowers Agent to execute and file, on
Mortgagor's behalf, all financing statements and refilings and continuations
thereof as Agent reasonably deems necessary or advisable to create, preserve and
protect said lien. When and if Mortgagor and Agent shall respectively become the
Debtor and Secured Party in any Uniform Commercial Code financing statement
affecting the Property, this Mortgage shall be deemed a security agreement as
defined in said Uniform Commercial Code and the remedies for any violation of
the covenants, terms and conditions of the agreements herein contained shall be
(i) as prescribed herein, (ii) by general law, or (iii) as to such part of the
security which is also reflected in said financing statement by the specific
statutory consequences now or hereafter enacted and specified in the Uniform
Commercial Code, all at Agent's sole election.
Mortgagor and Agent agree that the filing of a financing statement in the
records normally having to do with personal property shall never be construed as
in any way derogating from or impairing the express declaration and intention of
the parties hereto, hereinabove stated, that everything used in connection with
the production of income from the Property and/or adapted for use therein and/or
which is described or reflected in this Mortgage is, and at all times and for
all purposes and in all proceedings both legal or equitable, shall be regarded
as part of the real estate encumbered by this Mortgage irrespective of whether
(i) any such item is physically attached to the Improvements, (ii) serial
numbers are used for the better identification of certain equipment items
capable of being thus identified in a recital contained herein or in any list
filed
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with Agent, or (iii) any such item is referred to or reflected in any such
financing statement so filed at any time. Similarly, the mention in any such
financing statement of (1) rights in or to the proceeds of any fire and/or
hazard insurance policy, or (2) any award in eminent domain proceedings for a
taking or for loss of value, or (3) Mortgagor's interest as lessor in any
present or future lease or rights to income growing out of the use and/or
occupancy of the Property, whether pursuant to lease or otherwise, shall never
be construed as in any way altering any of the rights of Agent as determined by
this instrument or impugning the priority of Agent's lien granted hereby or by
any other recorded document, but such mention in the financing statement is
declared to be for the protection of Agent in the event any court or judge shall
at any time hold with respect to (1), (2) and (3) that notice of Agent's
priority of interest to be effective against a particular class of persons,
including but not limited to the federal government and any subdivisions or
entity of the federal government, must be filed in the Uniform Commercial Code
records.
1.10 Assignment of Rents. The assignment contained in paragraph (E) of this
Mortgage shall be fully operative without any further action on the part of
either party and specifically Agent shall be entitled, at its option, subject to
Section 5.07 below, upon the occurrence of an Event of Default hereunder, to all
rents, income and other benefits from the property described in paragraphs (A),
(B), (C) and (D) hereof whether or not Agent takes possession of such property.
To the extent permitted under applicable law and the Subordination Agreement (as
defined in Section 5.07 below), Mortgagor hereby further grants to Agent the
right (i) to enter upon and take possession of the Property for the purpose of
collecting the said rents, income and other benefits, (ii) to dispossess by the
usual summary ejectment proceedings any tenant defaulting in the payment thereof
to Agent, (iii) to let the Property or any part thereof, and (iv) to apply said
rents, income and other benefits, after payment of all necessary charges and
expenses, on account of the Obligations secured hereby. Such assignment and
grant shall continue in effect until the Obligations secured hereby are paid,
the execution of this Mortgage constituting and evidencing the irrevocable
consent of Mortgagor to the entry upon and taking possession of the Property by
Agent pursuant to such grant to the extent permitted under applicable law,
whether or not enforcement of this Mortgage has been instituted. Neither the
exercise of any rights under this paragraph by Agent nor the application of any
such rents, income or other benefits to the Obligations secured hereby, shall
cure or waive any default or notice of default hereunder or invalidate any act
done pursuant hereto or to any such notice, but shall be cumulative of all other
rights and remedies.
1.11 After-Acquired Property. To the extent permitted by and subject to
applicable law, the lien of this Mortgage will automatically attach, without
further act, to all after-acquired property located in or on, or attached to the
Property or any part thereof.
1.12 Agent's Performance of Defaults. Subject to Section 5.07 below, if
Mortgagor defaults in the payment of any tax, assessment, encumbrance or other
imposition, in its obligation to furnish insurance hereunder, or in the
performance or observance of any other covenant, condition or term in this
Mortgage or the Subordinated Note Documents, Agent may, to preserve its interest
in the Property, perform or observe the same, and all payments made (whether
such payments are regular or accelerated payments) and costs and expenses
incurred or paid by Agent in connection therewith shall become due and payable
immediately. The amounts so incurred or paid by Agent together with interest
thereon at the rate described in Section 2(a) of
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the Subordinated Notes from the date incurred until paid by Mortgagor, shall be
added to the Obligations and secured by the lien of this Mortgage. Agent is
hereby empowered to enter and authorize others to enter upon the Property or any
part thereof for the purpose of performing or observing any such defaulted
covenant, condition or term, without thereby becoming liable to Mortgagor or any
person in possession holding under Mortgagor.
1.13 Use of Property. Mortgagor covenants that the Property will be used,
if at all, for the purposes set forth in Schedule C.
1.14 Required Notices. Mortgagor shall notify Agent promptly of the
occurrence of any of the following: (i) receipt of notice from any governmental
authority relating to the Property; (ii) receipt of a notice from any tenant
leasing all or any portion of the Property; (iii) any change in the occupancy of
the Property; (iv) receipt of any notice from the holder of any other lien or
security interest in the Property; or (v) commencement of any judicial or
administrative proceedings by or against or otherwise affecting Mortgagor, the
Property or any Borrower or entity controlled by or under common control with
Mortgagor, or any other action by any creditor thereof as a result of any
default under the terms of any loan.
ARTICLE TWO
DEFAULTS
2.01 Event of Default. The term "Event of Default", wherever used in this
Mortgage, shall have the meaning ascribed to such term in the Security
Agreement.
ARTICLE THREE
REMEDIES
3.01 Acceleration of Maturity. If an Event of Default shall have occurred,
then all of the Obligations secured hereby shall, at Agent's option, immediately
become due and payable without notice or demand, time being of the essence
hereof; and no omission on the part of Agent to exercise such option when
entitled to do so shall be construed as a waiver of such right.
3.02 Agent's Power of Enforcement. If an Event of Default shall have
occurred, subject to Section 5.07 below, Agent may, either with or without entry
or taking possession as hereinabove provided or otherwise, and without regard to
whether or not the Obligations shall be due and without prejudice to the right
of Agent thereafter to bring any action for any default existing at the time
such earlier action was commenced, proceed by any appropriate action or
proceeding: (a) to enforce payment of the Obligations or the performance of any
term hereof or any other right; (b) to enforce this Mortgage and to sell, as an
entirety or in separate lots or parcels, the Property under the judgment or
decree of a court or courts of competent jurisdiction; and (c) to pursue any
other remedy available to it. Agent shall take action either by such proceedings
or by the exercise of its powers with respect to entry or taking possession, or
both, as Agent may determine.
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3.03 Agent's Right to Enter and Take Possession, Operate and Apply Income.
(a) If an Event of Default shall have occurred, subject to Section
5.07 below, (i) Mortgagor upon demand of Agent shall forthwith surrender to
Agent the actual possession and if and to the extent permitted by law, Agent
itself, or by such officers or agents as it may appoint, may enter upon and take
possession of the Property and may exclude Mortgagor and its agents and
employees wholly therefrom and may have joint access with Mortgagor to the
books, papers and accounts of Mortgagor; and (ii) Mortgagor will pay monthly in
advance to Agent on Agent's entry into possession, or to any receiver appointed
to collect the rents, income and other benefits of the Property, the fair and
reasonable rental value for the use and occupation of such part of the Property
as may be in possession of Mortgagor, and upon default in any such payment will
vacate and surrender possession of such part of the Property to Agent or to such
receiver and, in default thereof, Mortgagor may be evicted by summary
proceedings or otherwise.
(b) If Mortgagor shall for any reason fail to surrender or deliver the
Property or any part thereof after Agent's demand, subject to Section 5.07
below, Agent may obtain a judgment or decree conferring on Agent the right to
immediate possession or requiring Mortgagor to deliver immediate possession of
all or part of the Property to Agent, to the entry of which judgment or decree
Mortgagor hereby specifically consents. Mortgagor shall pay to Agent, upon
demand, all reasonable costs and expenses of obtaining such judgment or decree
and compensation to Agent, its attorneys and agents, and all such costs,
expenses and compensation shall, until paid, be secured by the lien of this
Mortgage.
(c) Upon every such entering upon or taking of possession, subject to
Section 5.07 below, Agent may hold, store, use, operate, manage and control the
Property and conduct the business thereof, and, from time to time:
(i) Make all necessary and proper maintenance, repairs, renewals,
replacements, additions, betterments and improvements thereto and thereon
and purchase or otherwise acquire additional fixtures, personalty and other
property;
(ii) Insure or keep the Property insured;
(iii) Manage and operate the Property and exercise all the rights
and powers of Mortgagor in its name or otherwise with respect to the same;
(iv) Enter into agreements with others to exercise the powers
herein granted Agent, all as Agent from time to time may determine; and
Agent may collect and receive all the rents, income and other benefits
thereof, including those past due as well as those accruing thereafter; and
shall apply the monies so received by Agent in such priority as Agent may
determine to (1) the payment of the Obligations; (2) the deposits for taxes
and assessments and insurance premiums due; (3) the cost of insurance,
taxes, assessments and proper charges upon the Property or any part
thereof; (4) the expenses of operating, maintaining, repairing and
improving the Property, including without limitation renting commissions
and rental collection commissions paid to an agent of Agent or of the
receiver; and (5) the compensation, expenses and disbursements of the
agents, attorneys and other representatives of Agent. All costs, expenses
and liabilities of
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every character incurred by Agent in managing, operating and maintaining
the Property, not paid out of rent as hereinabove provided, shall
constitute additional Obligations secured hereby. While in possession of
the Property, Agent or the receiver shall be liable to account only for the
rents, issues and profits actually received.
Agent shall surrender possession of the Property to Mortgagor only when all
Obligations secured hereby and all amounts under any of the terms of this
Mortgage shall have been paid and all defaults cured or waived. The same right
of taking possession, however, shall exist if any subsequent Event of Default
shall occur and be continuing.
3.04 Reserved.
3.05 Leases. Agent is authorized to enforce this Mortgage subject to the
rights of any tenants of the Property, and the failure to make any such tenants
parties defendant to any such enforcement proceedings and to foreclose their
rights will not be, nor be asserted by Mortgagor to be, a defense to any
proceedings instituted by Agent to collect the sums secured hereby or to collect
any deficiency remaining unpaid after the sale of the Property.
3.06 Waiver of Appraisement, Valuation, Stay, Extension and Redemption
Laws. Mortgagor agrees to the full extent permitted by law that in case of a
default in its part hereunder, neither Mortgagor nor anyone claiming through or
under it shall or will set up, claim or seek to take advantage of any
appraisement, valuation, extension or redemption laws now or hereafter in force,
in order to prevent or hinder the enforcement of this Mortgage or the absolute
sale of the Property or the final and absolute putting into possession thereof,
immediately after such sale, of the purchasers thereat, and Mortgagor, for
itself and all who may at any time claim through or under it, hereby waives, to
the full extent that it may lawfully so do, the benefit of all such laws, and
any and all right to have the assets comprising the Property marshalled upon any
enforcement of the lien hereof and agrees that any court having jurisdiction to
enforce such lien may sell the Property in part or as an entirety.
3.07 Receiver. If an Event of Default shall have occurred, Agent, to the
extent permitted by law and without regard to the value or adequacy of the
security for the Obligations secured hereby, shall be entitled as a matter of
right if it so elects to the appointment of a receiver to enter upon and take
possession of the Property and to collect all rents, income and other benefits
thereof and apply the same as the court may direct, and any such receiver shall
be entitled to hold, store, use, operate, manage and control the Property and
conduct the business thereof as would Agent pursuant to Paragraph 3.03(c) above.
The expenses, including receiver's fees, attorney's fees, costs and agent's
compensation, incurred pursuant to the powers herein contained shall be secured
by this Mortgage. The right to enter and take possession of and to manage and
operate the Property and to collect all rents, income and other benefits
thereof, whether by a receiver or otherwise, shall be cumulative to any other
right or remedy hereunder or afforded by law and may be exercised concurrently
therewith or independently thereof. Agent shall be liable to account only for
such rents, income and other benefits actually received by Agent, whether
received pursuant to this paragraph or paragraph 3.03. Notwithstanding the
appointment of any receiver or other custodian, Agent shall be entitled as
pledgee to the possession and control of any cash, deposits, or instruments at
the time held by, or payable or deliverable under the terms of this Mortgage to,
Agent.
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3.08 Suits to Protect the Property. Subject to Section 5.07 below, Agent
shall have the power and authority to institute and maintain any suits and
proceedings as Agent may deem advisable (a) to prevent any impairment of the
Property by any acts which may be unlawful or any violation of this Mortgage,
(b) to preserve or protect its interest in the Property, and (c) to restrain the
enforcement of or compliance with any legislation or other government enactment,
rule or order that may be unconstitutional or otherwise invalid, if the
enforcement or compliance with such enactment, rule or order might impair the
security hereunder or be prejudicial to Agent's interest.
3.09 Proofs of Claim. In the case of any receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings affecting Mortgagor or any guarantor, co-maker or endorser
of any of Mortgagor's obligations, its creditors or its property, Agent, to the
extent permitted by law, shall be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order to have its claims
allowed in such proceedings for the entire amount due and payable by Mortgagor
under this Mortgage, the other Subordinated Note Documents and any other
instrument securing the Obligations, at the date of the institution of such
proceedings, and for any additional amounts which may become due and payable by
Mortgagor after such date.
3.10 Application of Monies by Agent.
(a) Upon the occurrence of an Event of Default, subject to Section
5.07 below, Agent shall be entitled to xxx for and to recover judgment against
Mortgagor for the whole amount of the Obligations due and unpaid together with
costs and expenses, including without limitation, the reasonable compensation,
expenses and disbursements of Agent's agents, attorneys and other
representatives, either before, after or during the pendency of any proceedings
for the enforcement of this Mortgage, and the right of Agent to recover such
judgment shall not be affected by any taking possession hereunder, or by the
exercise of any other right, power or remedy for the enforcement of the terms of
this Mortgage.
(b) In case of a sale of all or any part of the Property and the
application of the proceeds of sale to the payment of the Obligations secured
hereby, subject to Section 5.07 below, Agent shall be entitled to enforce
payment from Mortgagor of all Obligations then remaining due and unpaid and to
recover judgment against Mortgagor for any portion thereof remaining unpaid,
with interest.
(c) Mortgagor hereby agrees, to the extent permitted by law, that no
recovery of any such judgment by Agent and no attachment or levy of any
execution upon any of the Property or any other property shall in any way affect
the lien of this Mortgage upon the Property or any part thereof or any lien,
rights, powers or remedies of Agent hereunder, but such lien, rights, powers and
remedies shall continue unimpaired as before.
(d) Any monies collected or received by Agent under this paragraph
3.10 shall be applied to the payment of reasonable compensation, expenses and
disbursements of the agents, attorneys and other representatives of Agent, and
the balance remaining shall be applied to the payment of the Obligations secured
hereby.
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(e) The provisions of this paragraph shall not be deemed to limit or
otherwise modify the provisions of any guaranty of the Obligations of Mortgagor
to Agent.
3.11 Delay or Omission; No Waiver. No delay or omission of Agent to
exercise any right, power or remedy accruing upon any Event of Default shall
exhaust or impair any such right, power or remedy or shall be construed to waive
any such Event of Default or to constitute acquiescence therein. Subject to
Section 5.07 below, every right, power and remedy given to Agent may be
exercised from time to time and as often as may be deemed expedient by Agent.
3.12 No Waiver of One Default to Affect Another. No waiver of any Event of
Default hereunder shall extend to or affect any subsequent or any other Event of
Default then existing, or impair any rights, powers or remedies consequent
thereon. If Agent (a) grants forbearance or an extension of time for the payment
of any Obligations secured hereby; (b) takes other or additional security for
the payment thereof; (c) waives or does not exercise any right granted in this
Mortgage or any other Subordinated Note Document; (d) releases any part of the
Property from the lien of this Mortgage; (e) consents to the filing of any map,
plat or replat of the Land; (f) consents to the granting of any easement on the
Land; or (g) makes or consents to any agreement changing the terms of this
Mortgage or subordinating the lien or any charge hereof, no such act or omission
shall release, discharge, modify, change or affect the Obligations of Mortgagor.
No such act or omission shall preclude Agent from exercising any right, power or
privilege herein granted or intended to be granted in case of any Event of
Default then existing or of any subsequent Event of Default nor shall the lien
of this Mortgage be altered hereby, except to the extent of releases as
described in subparagraph (d) above of this paragraph 3.12.
3.13 Discontinuance of Proceedings; Position of Parties Restored. If Agent
shall have proceeded to enforce any right or remedy under this Mortgage and such
proceedings shall have been discontinued or abandoned for any reason, or such
proceedings shall have resulted in a final determination adverse to Agent, then
and in every such case Mortgagor and Agent shall be restored to their former
positions and rights hereunder, and all rights, powers and remedies of Agent
shall continue as if no such proceedings had occurred or had been taken.
3.14 Remedies Cumulative. No right, power or remedy conferred upon or
reserved to Agent by this Mortgage or the other Subordinated Note Documents is
exclusive of any other right, power or remedy, but each and every such right,
power and remedy shall be cumulative and concurrent and shall be in addition to
any other right, power and remedy given under the Subordinated Note Documents,
or now or hereafter existing at law, in equity or by statute.
ARTICLE FOUR
TRANSFER OR FURTHER ENCUMBRANCE OF THE PROPERTY
4.01 Transfer or Further Encumbrance of the Property. Except as provided in
Section 5.08 below, in the event of any sale, conveyance, transfer, lease,
pledge or further encumbrance of the Property or any interest in or any part of
the Property, or any further assignment of rents from the Property without the
prior written consent of Agent then, at Agent's option, subject to Section 5.07
below, Agent may declare all Obligations to be due and payable immediately
without demand or notice. Agent's consent shall be within its sole and absolute
discretion, and
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Agent specifically reserves the right to condition its consent upon (by way of
illustration but not of limitation) its approval of the financial management
ability of the purchaser, transferee, lessee, pledgee or assignee, upon an
agreement to escalate the interest rate on the Obligations to Agent's then
current interest rate for similarly situated properties, upon the assumption of
the Obligations and this Mortgage by the purchaser, transferee, lessee, pledgee
or assignee, upon the receipt of guaranties of the indebtedness satisfactory to
Agent or upon payment to Agent of a reasonable assumption fee. Except as
provided in Section 5.08 below, any purchaser, transferee, lessee, pledgee or
assignee shall be deemed to have assumed and agreed to pay the Obligations
secured by this Mortgage and to have assumed and agreed to be bound by the terms
and conditions of this Mortgage, including the terms of this paragraph, unless
Agent specifically agrees in writing to the contrary. Except as provided in
Section 5.08 below, Mortgagor agrees that in the event the ownership of the
Property or any part thereof becomes vested in a person other than Mortgagor,
Agent may, without notice to Mortgagor (except as required by applicable law),
deal in any way with such successor or successors in interest with reference to
this Mortgage and the Obligations hereby secured without in any way vitiating or
discharging Mortgagor's liability hereunder or under the Subordinated Note
Documents. Except as provided in Section 5.08 below, no transfer or encumbrance
of the Property or any interest therein and no forbearance or assumption by any
person with respect to this Mortgage and no extension to any person of the time
for payment of the Obligations hereby secured given by Agent shall operate to
release, discharge, modify, change or affect the liability of Mortgagor either
in whole or in part, unless Agent specifically agrees in writing to the
contrary.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
5.01 Successors and Assigns Included in Parties. 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 Agent or Lenders shall bind and inure to the benefit of their
respective successors and assigns, whether so expressed or not.
5.02 Addresses for Notices, Etc.
(a) Except as may be otherwise provided herein, any notice, report,
demand or other instrument authorized or required to be given or furnished under
this Mortgage to Mortgagor or Agent shall be in writing, shall be sent by
certified or registered mail, return receipt requested, personal delivery
against receipt, or by telegraph or facsimile and, unless otherwise expressly
permitted herein, shall be deemed to have been validly served, given or
delivered when delivered against receipt or one (1) business day after deposit
in the United States mail, postage prepaid, or, in the case of telegraphic
notice, when delivered to the telegraph company, or, in the case of facsimile
notice, when sent, answer back, addressed as follows:
If to Agent, at: Wachovia Bank, National Association
000 00xx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
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Attention: Xxxxxx Xxxxx
Facsimile No.: 000-000-0000
with a copy to: Xxxxx Day
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxxxx
Facsimile No.: 404-581-8330
If to Mortgagor: Xxxxxxxxx Weavers, Inc.
c/o Crown Crafts, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Facsimile No.: 000-000-0000
With a copy to: Xxxxxx & Xxxxxx
000 Xxxxxxxxx Xxxxxx XX
0000 Xxxxxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxx
Facsimile No.: 000-000-0000
(b) Either party may change the address to which any such notice,
report, demand or other instrument is to be delivered or mailed, by furnishing
written notice of such change to the other party, but no such notice of change
shall be effective unless and until received by such other party.
5.03 Headings. The headings of the articles, sections, paragraphs and
subdivisions of this Mortgage are for convenience of reference only, are not to
be considered a part hereof, and shall not limit or expand or otherwise affect
any of the terms hereof.
5.04 Invalid Provisions to Affect No Others. In the event that any of the
covenants, agreements, terms or provisions contained in the Subordinated Note
Documents shall be deemed invalid, illegal or unenforceable in any respect, the
validity of the remaining covenants, agreements, terms or provisions contained
in the Subordinated Note Documents shall be in no way affected, prejudiced or
disturbed thereby; and if any application of any term, restriction or covenant
to any person or circumstances is deemed illegal or unenforceable, the
application of such term, restriction or covenant to other persons and
circumstances shall remain unaffected to the extent permitted by law.
5.05 Changes, Etc. Neither this Mortgage nor any term hereof may be
changed, waived, discharged or terminated orally, or by any action or inaction,
but only by an instrument in writing signed by Agent or Mortgagor, as the case
may be, against which enforcement of the change, waiver, discharge or
termination is sought. The modification hereof or of any of the
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Subordinated Note Documents or the release of any part of the Property from the
lien hereof shall not impair the priority of the lien of this Mortgage.
5.06 Governing Law. This Mortgage shall be construed, interpreted, enforced
and governed by and in accordance with the laws of the State of Kentucky.
5.07 Subordination. This Mortgage and the liens and security interests
granted hereby are subordinate to the Senior Mortgage and are otherwise subject
to the terms and conditions of that certain Subordination Agreement dated of
even date herewith by and among the Agent, the Lenders and Senior Creditor (the
"Subordination Agreement").
5.08 Certain Transactions. Anything in this Mortgage to the contrary
notwithstanding, this Mortgage shall terminate immediately upon the occurrence
of any of the following transactions that is consented to by the Senior
Creditor: (i) a sale of all or substantially all of the stock of Mortgagor; (ii)
a merger or other business combination involving Mortgagor; or (iii) the
liquidation of Mortgagor.
[signatures on following pages]
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IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly executed
under seal in its corporate name by its duly authorized corporate officers on
the day and year first above written.
XXXXXXXXX WEAVERS, INC.
By: /s/ E. Xxxxxxx Xxxxxxxx
------------------------------------
Name: E. Xxxxxxx Xxxxxxxx
Title: Vice President
STATE OF Louisiana
Parish OF Ascension
I, the undersigned authority, a Notary Public in and for said County, in
said state, hereby certify that E. Xxxxxxx Xxxxxxxx, the Vice President of
Xxxxxxxxx Weavers, Inc., who is personally known to me to be the same person
whose name is signed to the foregoing instrument, acknowledged before me on this
day that, being informed of the contents of the instrument, he, in his capacity
as such Vice President and with full authority, executed the same voluntarily
for and as the act of said corporation on the day the same bears date.
Given under my hand this the 7th day of July, 2006.
/s/ Xxxxxxx Xxxxxxx
----------------------------------------
Notary Public Xxxxxxx Xxxxxxx XX #00000
My Commission Expires: is for life
Resident of Ascension Parish
This document was prepared by:
Xxxxxxxxxxx X. Xxxxxx, Esq.
Xxxxx Day
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
/s/ Xxxxxxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxxxxxx X. Xxxxxx, Esq.
