Kansas
MORTGAGE, SECURITY AGREEMENT,
FINANCING STATEMENT AND
ASSIGNMENT OF RENTS AND LEASES
THIS MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT AND ASSIGNMENT OF
RENTS AND LEASES ("Mortgage") entered into as of the 27th day of February, 1997,
by GFSI, INC., a Delaware corporation ("Mortgagor"), having its chief executive
office at 9700 Commerce Parkway, Lenexa, Kansas 66219 in favor of THE FIRST
NATIONAL BANK OF CHICAGO ("Mortgagee"), having an office at One First National
Plaza, Chicago, Illinois 60670, as contractual representative for its benefit
and for the benefit of the "Holders of Secured Obligations" as defined in that
certain Credit Agreement (as amended, restated, modified, supplemented or
substituted from time to time, the "Credit Agreement"), dated of even date
herewith, by and among Mortgagor, Mortgagee and the institutions from time to
time a party thereto as Lenders. The term "Holders of Secured Obligations" shall
include those who are, and those who may hereafter become, parties to the Credit
Agreement in such capacity. Except as otherwise provided herein, all capitalized
terms used but not defined herein shall have the respective meanings given to
them in the Credit Agreement, which is hereby incorporated herein by reference.
WITNESSETH:
WHEREAS, pursuant to and upon satisfaction of the conditions set forth in
the Credit Agreement, the Lenders have agreed to make certain A Term Loans, B
Term Loans, Revolving Loans and Swing Line Loans and Mortgagee and Lenders have
agreed to extend certain other financial accommodations from time to time to
Mortgagor, all in an aggregate principal amount not to exceed One Hundred
Fifteen Million and no/100 Dollars ($115,000,000.00); and
WHEREAS, pursuant to the provisions of the Credit Agreement, Mortgagor has
executed and delivered to Lenders, to further evidence the Loans, (i) those
certain Term Loan A Notes, dated of even date herewith, in the aggregate
principal amount of
This document was prepared by
and after recording should be
returned to:
James L. Marovitz
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Forty Million and no/100 Dollars ($40,000,000.00), (ii) those certain Term Loan
B Notes, dated of even date herewith, in the aggregate principal amount of
Twenty Five Million and no/100 Dollars ($25,000,000.00), (iii) those certain
Revolving Notes, dated of even date herewith, in the aggregate principal amount
of Fifty Million and no/100 Dollars ($50,000,000.00) and (iv) that certain Swing
Line Note, dated of even date herewith, in the aggregate principal amount of One
Million and no/100 Dollars ($1,000,000)(the Term Loan A Notes, the Term Loan B
Notes, the Revolving Notes and the Swing Line Note, and any and all renewals,
extensions for any period, increases or rearrangements thereof are jointly
referred to as the "Notes"); and
WHEREAS, as a condition to Mortgagee's and Lenders' extension of such
credit and financial accommodations to Mortgagor including, without limitation,
the extension of credit evidenced by the Notes and pursuant to the Credit
Agreement, Mortgagee and Lenders have required that Mortgagor enter into this
Mortgage and grant to Mortgagee, for itself and as Agent, the liens and security
interests referred to herein to secure, subject to the limitation as to amount
as hereinafter provided, (i) the payment of the principal amount evidenced by
the Notes together with interest thereon; (ii) payment of all L/C Obligations;
(iii) payment of the principal amount, together with interest thereon, of all
present and future advances of money made by Mortgagee or Holders of Secured
Obligations to Mortgagor, including without limitation, the reborrowing of
principal previously repaid pursuant to the Credit Agreement, as well as all
other Secured Obligations of Mortgagor to Mortgagee or Holders of Secured
Obligations; and (iv) other payment and performance obligations related to this
Mortgage (the aforesaid Secured Obligations of Mortgagor to Mortgagee, together
with the obligations evidenced by the Notes plus interest and other payment and
performance obligations being hereinafter referred to collectively as the
"Liabilities"); and
WHEREAS, the Liabilities secured hereby shall not exceed an aggregate
principal amount, at any one time outstanding of Thirteen Million Two Hundred
Thousand and no/100 Dollars ($13,200,000.00), provided, that the foregoing
limitation shall apply only to the lien upon the real property created by this
Mortgage, and it shall not in any manner limit, affect or impair any grant of a
security interest or other right in favor of the Mortgagee under the provisions
of the Credit Agreement or under any other security agreement at any time
executed by Mortgagor;
NOW, THEREFORE, in consideration of the premises contained herein and to
secure payment of the Liabilities and in consideration of One Dollar ($1.00) in
hand paid, the receipt and
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sufficiency whereof are hereby acknowledged, Mortgagor does hereby grant,
remise, release, alien, convey, mortgage and warrant to Mortgagee, its
successors and assigns, the following described real estate (the "Land") in
Johnson County, Kansas, and does further grant a security interest to Mortgagee
in all Mortgaged Property (as defined below) as may be secured under the Uniform
Commercial Code (the "Code") in effect in the State of Kansas (the "State"):
See Exhibit A attached hereto and by this reference made a part hereof for
the legal description of the Land
which Land, together with all right, title and interest, if any, which Mortgagor
may now have or hereafter acquire in and to all improvements, buildings and
structures now or hereafter located thereon of every nature whatsoever, is
herein called the "Premises".
TOGETHER WITH all right, title and interest, if any, including any
after-acquired right, title and interest, and including any right of use or
occupancy, which Mortgagor may now have or hereafter acquire in and to (a) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and
public places adjoining said Land, and any other interests in property
constituting appurtenances to the Premises, or which hereafter shall in any way
belong, relate or be appurtenant thereto, and (b) all hereditaments, gas, oil,
minerals (with the right to extract, sever and remove such gas, oil and
minerals), and easements, of every nature whatsoever, located in or on the
Premises and all other rights and privileges thereunto belonging or appertaining
and all extensions, additions, improvements, betterments, renewals,
substitutions and replacements to or of any of the rights and interests
described in subparagraphs (a) and (b) above (hereinafter the "Property
Rights").
TOGETHER WITH all right, title and interest, if any, including any
after-acquired right, title and interest, and including any right of use or
occupancy, which Mortgagor may now or hereafter acquire in and to all fixtures
and appurtenances of every nature whatsoever now or hereafter located in, on or
attached to, and used or intended to be used in connection with, or with the
operation of, the Premises, including, but not limited to (a) all apparatus,
machinery and equipment of Mortgagor and (b) all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to or of any
of the foregoing (the items described in the foregoing
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clauses (a) and (b) being the "Fixtures"). It is mutually agreed, intended and
declared that the Premises and all of the Property Rights and Fixtures owned by
Mortgagor (referred to collectively herein as the "Real Property") shall, so far
as permitted by law, be deemed to form a part and parcel of the Land and for the
purpose of this Mortgage to be real estate and covered by this Mortgage. It is
also agreed that if any of the property herein mortgaged is of a nature so that
a security interest therein can be perfected under the Code in effect in the
State, this instrument shall constitute a security agreement, fixture filing and
financing statement, and Mortgagor agrees to execute, deliver and file or refile
any financing statement, continuation statement, or other instruments Mortgagee
may reasonably require from time to time to perfect or renew such security
interest under the Code. To the extent permitted by law, (i) all of the Fixtures
are or are to become fixtures on the Land and (ii) this instrument, upon
recording or registration in the real estate records of the proper office, shall
constitute a "fixture-filing" within the meaning of Sections 9-313 and 9-402 of
the Code. Subject to the terms and conditions of the Credit Agreement, the
remedies for any violation of the covenants, terms and conditions of the
agreements herein contained shall be as prescribed herein or by general law, or,
as to that part of the security in which a security interest may be perfected
under the Code, by the specific statutory consequences now or hereafter enacted
and specified in the Code, all at Mortgagee's sole election.
TOGETHER WITH all the estate, right, title and interest of the Mortgagor in
and to (i) all judgments, insurance proceeds, awards of damages and settlements
resulting from condemnation proceedings or the taking of the Real Property, or
any part thereof, under the power of eminent domain or for any damage (whether
caused by such taking or otherwise) to the Real Property, or any part thereof,
or to any rights appurtenant thereto, and all proceeds of any sales or other
dispositions of the Real Property or any part thereof; and (except as otherwise
provided herein or in the Credit Agreement) the Mortgagee is hereby authorized
to collect and receive said awards and proceeds and to give proper receipts and
acquittances therefor, and to apply the same as provided in the Credit
Agreement; and (ii) all contract rights, general intangibles, actions and rights
in action relating to the Real Property including, without limitation, all
rights to insurance proceeds and unearned premiums arising from or relating to
damage to the Real Property; and (iii) all proceeds, products, replacements,
additions, substitutions, renewals and accessions of and to the Real Property.
(The rights and interests described in this paragraph shall hereinafter be
called the "Intangibles".)
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As additional security for the Liabilities secured hereby, Mortgagor (i)
does hereby pledge and assign to Mortgagee from and after the date hereof
(including any period of redemption), primarily and on a parity with the Real
Property, and not secondarily, all the rents, issues and profits of the Real
Property and all rents, issues, profits, revenues, royalties, bonuses, rights
and benefits due, payable or accruing (including all deposits of money as
advance rent, for security or as earnest money or as down payment for the
purchase of all or any part of the Real Property) (the "Rents") under any and
all present and future leases, contracts or other agreements relative to the
ownership or occupancy of all or any portion of the Real Property, and (ii)
except to the extent such a transfer or assignment is not permitted by the terms
thereof, does hereby transfer and assign to Mortgagee all such leases and
agreements (including all Mortgagor's rights under any contracts for the sale of
any portion of the Mortgaged Property and all revenues and royalties under any
oil, gas and mineral leases relating to the Real Property) (the "Leases").
Mortgagee hereby grants to Mortgagor the right to collect and use the Rents as
they become due and payable under the Leases, but not more than one (1) month in
advance thereof, unless a Designated Default shall have occurred provided that
the existence of such right shall not operate to subordinate this assignment to
any subsequent assignment, in whole or in part, by Mortgagor, and any such
subsequent assignment shall be subject to the rights of the Mortgagee under this
Mortgage. Mortgagor further agrees to execute and deliver such assignments of
leases or assignments of land sale contracts as Mortgagee may from time to time
request. In the event of a Designated Default (1) the Mortgagor agrees, upon
demand, to deliver to the Mortgagee all of the Leases with such additional
assignments thereof as the Mortgagee may request and agrees that the Mortgagee
may assume the management of the Real Property and collect the Rents, applying
the same upon the Liabilities in the manner provided in the Credit Agreement,
and (2) the Mortgagor hereby authorizes and directs all tenants, pur chasers or
other persons occupying or otherwise acquiring any interest in any part of the
Real Property to pay the Rents due under the Leases to the Mortgagee upon
request of the Mortgagee. Mortgagor hereby appoints Mortgagee as its true and
lawful attorney in fact to manage said property and collect the Rents, with full
power to bring suit for collection of the Rents and possession of the Real
Property, giving and granting unto said Mortgagee and unto its agent or attorney
full power and authority to do and perform all and every act and thing
whatsoever requisite and necessary to be done in the protection of the security
hereby conveyed; provided, however, that (i) this power of attorney and
assignment of rents shall not be construed as an obligation upon said Mortgagee
to make or cause to be made any
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repairs that may be needful or necessary and (ii) Mortgagee agrees that until
such Designated Default as aforesaid, Mortgagee shall permit Mortgagor to
perform the aforementioned management responsibilities. Upon Mortgagee's receipt
of the Rents, at Mortgagee's option, it may use the proceeds of the Rents to
pay: (1) reasonable charges for collection thereof, costs of necessary repairs
and other costs requisite and necessary during the continuance of this power of
attorney and assignment of rents, (2) general and special taxes, insurance
premiums, and (3) any or all of the Liabilities pursuant to the provisions of
the Credit Agreement. This power of attorney and assignment of rents shall be
irrevocable until this Mortgage shall have been satisfied and released of record
and the releasing of this Mortgage shall act as a revocation of this power of
attorney and assignment of rents. Mortgagee shall have and hereby expressly
reserves the right and privilege (but assumes no obligation) to demand, collect,
sue for, receive and recover the Rents, or any part thereof, now existing or
hereafter made, and apply the same in accordance with the provisions of the
Credit Agreement.
All of the property described above, and each item of property therein
described, not limited to but including the Land, the Premises, the Property
Rights, the Fixtures, the Real Property, the Intangibles, the Rents and the
Leases, is herein referred to as the "Mortgaged Property."
Nothing herein contained shall be construed as constituting the Mortgagee a
mortgagee-in-possession in the absence of the taking of actual possession of the
Mortgaged Property by the Mortgagee. Nothing contained in this Mortgage shall be
construed as imposing on Mortgagee any of the obligations of the lessor under
any Lease of the Mortgaged Property in the absence of an explicit assumption
thereof by Mortgagee. In the exercise of the powers herein granted the
Mortgagee, except as provided in the Credit Agreement, no liability shall be
asserted or enforced against the Mortgagee, all such liability being expressly
waived and released by Mortgagor.
TO HAVE AND TO HOLD the Mortgaged Property, properties, rights and
privileges hereby conveyed or assigned, or intended so to be, unto Mortgagee,
its beneficiaries, successors and assigns, forever for the uses and purposes
herein set forth. Mortgagor hereby releases and waives all rights under and by
virtue of the Homestead Exemption Laws, if any, of the State and Mortgagor
hereby covenants, represents and warrants that, at the time of the ensealing and
delivery of these presents, Mortgagor is well seised of the Mortgaged Property
in fee simple and with lawful authority to sell, assign, convey and mortgage the
Mortgaged
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Property, and that the title to the Mortgaged Property is free and clear of all
encumbrances, except as described on Exhibit B attached hereto and made a part
hereof, and that, except for the encumbrances set forth on Exhibit B, Mortgagor
will forever defend the same against all lawful claims.
The following provisions shall also constitute an integral part of this
Mortgage:
1. Payment of Taxes on the Mortgage. Without limiting any of the provisions
of the Credit Agreement, Mortgagor agrees that, if the United States or any
department, agency or bureau thereof or if the State or any of its subdivisions
having jurisdiction shall at any time require documentary stamps to be affixed
to this Mortgage or shall levy, assess, or charge any tax, assessment or
imposition upon this Mortgage or the credit or indebtedness secured hereby or
the interest of Mortgagee in the Premises or upon Mortgagee by reason of or as
holder of any of the foregoing then, Mortgagor shall pay for such documentary
stamps in the required amount and deliver them to Mortgagee or pay (or reimburse
Mortgagee for) such taxes, assessments or impositions. Mortgagor agrees to
exhibit to Mortgagee, at any time upon request, official receipts showing
payment of all taxes, assessments and charges which Mortgagor is required or
elects to pay under this paragraph. Mortgagor agrees to indemnify Mortgagee
against liability on account of such documentary stamps, taxes, assessments or
impositions, whether such liability arises before or after payment of the
Liabilities and regardless of whether this Mortgage shall have been released.
2. Leases Affecting the Real Property. Mortgagor agrees faithfully to
perform all of its obligations under all present and future Leases at any time
assigned to Mortgagee as additional security, and to refrain from any action or
inaction which would result in termination of any such Leases or in the
diminution of the value thereof or of the Rents due thereunder. All future
lessees under any Lease made after the date of recording of this Mortgage shall,
at Mortgagee's option and without any further documentation, attorn to Mortgagee
as lessor if for any reason Mortgagee becomes lessor thereunder, and, upon
demand, pay rent to Mortgagee, and Mortgagee shall not be responsible under such
Lease for matters arising prior to Mortgagee becoming lessor thereunder.
3. Use of the Real Property. Mortgagor agrees that it shall not permit the
public to use the Real Property in any manner that might tend, in Mortgagee's
reasonable judgment, to impair Mortgagor's title to such property or any portion
thereof,
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or to make possible any claim or claims of easement by prescription or of
implied dedication to public use.
4. Indemnification. Mortgagor shall not use or permit the use of any part
of the Real Property for an illegal purpose, including, without limitation, the
violation of any environmental laws, statutes, codes, regulations or practices.
Without limiting any indemnification Mortgagor has granted in the Credit
Agreement, Mortgagor agrees to indemnify and hold harmless Mortgagee from and
against any and all losses, suits, liabilities, fines, damages, judgments,
penalties, claims, charges, costs and expenses (including reasonable attorneys'
and paralegals' fees, court costs and disbursements) which may be imposed on,
incurred or paid by or asserted against the Real Property by reason or on
account of or in connection with (i) the construction, reconstruction or
alteration of the Real Property, (ii) any negligence or misconduct of Mortgagor,
any lessee of the Real Property, or any of their respective agents, contractors,
subcontractors, servants, employees, licensees or invitees, (iii) any accident,
injury, death or damage to any person or property occurring in, on or about the
Real Property or any street, drive, sidewalk, curb or passageway adjacent
thereto, or (iv) any other transaction arising out of or in any way connected
with the Mortgaged Property.
5. Insurance. Mortgagor shall, at its sole expense, obtain for, deliver to,
assign and maintain for the benefit of Mortgagee, until the Liabilities are paid
in full, insurance policies as specified in the Credit Agreement. In the event
of a casualty loss, the net insurance proceeds from such insurance policies
shall be paid and applied as specified in the Credit Agreement.
6. Condemnation Awards. Mortgagor hereby assigns to Mortgagee, as
additional security, all awards of damage resulting from condemnation
proceedings or the taking of or injury to the Real Property for public use, and
Mortgagor agrees that the proceeds of all such awards shall be paid and applied
as specified in the Credit Agreement.
7. Remedies. Subject to the provisions of the Credit Agreement, upon the
occurrence of a Designated Default under the terms of the Credit Agreement, in
addition to any rights and remedies provided for in the Credit Agreement, and to
the extent permitted by applicable law, the following provisions shall apply:
(a) Mortgagee's Power of Enforcement. It shall be lawful for Mortgagee to
(i) immediately sell the Mortgaged
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Property either in whole or in separate parcels, as prescribed by the State law,
under power of sale, which power is hereby granted to Mortgagee to the full
extent permitted by the State law, and thereupon, to make and execute to any
purchaser(s) thereof deeds of conveyance pursuant to applicable law or (ii)
immediately foreclose this Mortgage by judicial action. The court in which any
proceeding is pending for the purpose of foreclosure of this Mortgage may, at
once or at any time thereafter, either before or after sale, without notice and
without requiring bond, and without regard to the solvency or insolvency of any
person liable for payment of the Liabilities secured hereby, and without regard
to the then value of the Mortgaged Property or the occupancy thereof as a
homestead, appoint a receiver (the provisions for the appointment of a receiver
and assignment of rents being an express condition upon which the Loan hereby
secured is made) for the benefit of Mortgagee, with power to collect the Rents,
due and to become due, during such foreclosure suit and the full statutory
period of redemption notwithstanding any redemption. The receiver, out of the
Rents when collected, may pay costs incurred in the management and operation of
the Real Property, prior and subordinate liens, if any, and taxes, assessments,
water and other utilities and insurance, then due or thereafter accruing, and
may make and pay for any necessary repairs to the Real Property, and may pay all
or any part of the Liabilities or other sums secured hereby or any deficiency
decree entered in such foreclosure proceedings. Upon or at any time after the
filing of a suit to foreclose this Mortgage, the court in which such suit is
filed shall have full power to enter an order placing Mortgagee in possession of
the Real Property with the same power granted to a receiver pursuant to this
subparagraph and with all other rights, privileges and obligations of a
mortgagee-in-possession under applicable law.
(b) Mortgagee's Right to Enter and Take Possession, Operate and Apply
Income. Mortgagee shall, at its option, have the right, acting through its
agents or attorneys, either with or without process of law, forcibly or
otherwise, to enter upon and take possession of the Real Property, expel and
remove any persons, goods, or chattels occupying or upon the same, to collect or
receive all the Rents, and to manage and control the same, and to lease the same
or any part thereof, from time to time, and, after deducting all reasonable
attorneys' fees and expenses, and all reasonable expenses incurred in the
protection, care, maintenance, management and operation of the Real Property,
distribute and apply the remaining net income in accordance with the terms of
the Credit Agreement or upon any deficiency decree entered in any foreclosure
proceedings.
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8. Application of the Rents or Proceeds from Fore closure or Sale. In any
foreclosure of this Mortgage by judicial action, or any sale of the Mortgaged
Property by advertisement, in addition to any of the terms and provisions of the
Credit Agreement, there shall be allowed (and included in the decree for sale in
the event of a foreclosure by judicial action) to be paid out of the Rents or
the proceeds of such foreclosure proceeding and/or sale:
(a) Liabilities. All of the Liabilities and other sums secured hereby which
then remain unpaid; and
(b) Other Advances. All other items advanced or paid by Mortgagee pursuant
to this Mortgage; and
(c) Costs, Fees and Other Expenses. All court costs, reasonable and
documented attorneys' and paralegals' fees and expenses, appraiser's fees,
advertising costs, filing fees and transfer taxes, notice expenses, expenditures
for documentary and expert evidence, stenographer's charges, publication costs,
and costs (which may be estimated as to items to be expended after entry of the
decree) of procuring all abstracts of title, title searches and examinations,
title guarantees, title insurance policies, Torrens certificates and similar
data with respect to title which Mortgagee in the reasonable exercise of its
judgment may deem necessary. All such expenses shall become additional
Liabilities secured hereby when paid or incurred by Mortgagee in connection with
any proceedings, including but not limited to probate and bankruptcy
proceedings, to which Mortgagee shall be a party, either as plaintiff, claimant
or defendant, by reason of this Mortgage or any indebtedness hereby secured or
in connection with the preparations for the commencement of any suit for the
foreclosure, whether or not actually commenced, or sale by advertisement. The
proceeds of any sale (whether through a foreclosure proceeding or Mortgagee's
exercise of the power of sale) shall be distributed and applied in accordance
with the terms of the Credit Agreement.
9. Cumulative Remedies; Delay or Omission Not a Waiver. Each remedy or
right of Mortgagee shall not be exclusive of but shall be in addition to every
other remedy or right now or hereafter existing at law or in equity. No delay in
the exercise or omission to exercise any remedy or right accruing on the
occurrence or existence of any Default shall impair any such remedy or right or
be construed to be a waiver of any such Default or acquiescence therein, nor
shall it affect any subsequent Default of the same or different nature. Every
such remedy or right may be exercised concurrently or independently and when and
as often as may be deemed expedient by Mortgagee.
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10. Mortgagee's Remedies against Multiple Parcels. If more than one
property, lot or parcel is covered by this Mortgage, and if this Mortgage is
foreclosed upon, or judgment is entered upon any Liabilities secured hereby, or
if Mortgagee exercises its power of sale, execution may be made upon or
Mortgagee may exercise its power of sale against any one or more of the
properties, lots or parcels and not upon the others, or upon all of such
properties or parcels, either together or separately, and at different times or
at the same time, and execution sales or sales by advertisement may likewise be
conducted separately or concurrently, in each case at Mortgagee's election.
11. No Merger. In the event of a foreclosure of this Mortgage or any other
mortgage or deed of trust securing the Liabilities, the Liabilities then due the
Mortgagee shall not be merged into any decree of foreclosure entered by the
court, and Mortgagee may concurrently or subsequently seek to foreclose one or
more mortgages or deeds of trust which also secure said Liabilities.
12. Notices. All notices and other communications provided to any party
hereto under this Mortgage shall be in writing or by telex or by facsimile and
addressed or delivered to such party at its address set forth below or at such
other address as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid,
shall be deemed given when received; any notice, if transmitted by telex or
facsimile, shall be deemed given when transmitted (answerback confirmed in the
case of telexes).
if to Mortgagor:
GFSI, Inc.
9700 Commerce Parkway
Lenexa, Kansas 66219
Attn: Robert Shaw
Telecopy No.: 913/752-3346
with copies to:
The Jordan Company
9 West 57th Street
40th Floor
New York, New York 10019
Attn: A. Richard Caputo, Jr.
Telecopy No.: 212/755-5263
and
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Mayer, Brown & Platt
1675 Broadway, Suite 1900
New York, New York 10019
Attn: James Carlson
Telecopy No.: 212/262-1910
if to Mortgagee:
The First National Bank of Chicago
One First National Plaza
Suite 0088
Chicago, Illinois 60670-0088
Attn: Nathan L. Bloch
Telecopy No.: 312/732-1117
with a copy to:
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attn: Sara Elizabeth Bartlett
Telecopy No. 312/853-7036
13. Extension of Payments. Mortgagor agrees that, without affecting the
liability of any person for payment of the Liabilities secured hereby or
affecting the lien of this Mortgage upon the Mortgaged Property or any part
thereof (other than persons or property explicitly released as a result of the
exercise by Mortgagee of its rights and privileges hereunder), Mortgagee may at
any time and from time to time, on request of the Mortgagor, without notice to
any person liable for payment of any Liabilities secured hereby, but otherwise
subject to the provisions of the Credit Agreement, extend the time, or agree to
alter or amend the terms of payment of such Liabilities. Mortgagor further
agrees that any part of the security herein described may be released with or
without consideration without affecting the remainder of the Liabilities or the
remainder of the security.
14. Governing Law. Mortgagor agrees that this Mortgage is to be construed,
governed and enforced in accordance with the laws of the State. Wherever
possible, each provision of this Mortgage shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Mortgage shall be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the
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remainder of such provision or the remaining provisions of this Mortgage.
15. Satisfaction of Mortgage. Upon full payment of all the Liabilities, at
the time and in the manner provided in the Credit Agreement, or upon
satisfaction of the conditions set forth in the Credit Agreement for release of
the Mortgaged Property from this Mortgage, this conveyance or lien shall be null
and void and, upon demand therefor following such payment or satisfaction of the
conditions set forth in the Credit Agreement for release of the Mortgaged
Property, as the case may be, a satisfaction of mortgage or reconveyance of the
Mortgaged Property shall promptly be provided by Mortgagee to Mortgagor.
16. Successors and Assigns Included in Parties. This Mortgage shall be
binding upon the Mortgagor and upon the suc cessors, assigns and vendees of the
Mortgagor and shall inure to the benefit of the Mortgagee's successors and
assigns; all references herein to the Mortgagor and to the Mortgagee shall be
deemed to include their respective successors and assigns. Mort gagor's
successors and assigns shall include, without limitation, a receiver, trustee or
debtor in possession of or for the Mort gagor. Wherever used, the singular
number shall include the plural, the plural shall include the singular, and the
use of any gender shall be applicable to all genders.
17. Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws.
Mortgagor agrees, to the full extent permitted by law, that at all times
following a Designated Default, neither Mortgagor nor anyone claiming through or
under it shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, or extension laws now or hereafter in force, in
order to prevent or hinder the enforcement or fore closure of this Mortgage or
the absolute sale of the Mortgaged Property or the final and absolute putting
into possession thereof, immediately after such sale, of the purchaser 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 Mortgaged
Property marshaled upon any foreclosure of the lien hereof and agrees that
Mortgagee or any court having jurisdiction to foreclose such lien may sell the
Mortgaged Property in part or as an entirety. To the full extent permitted by
law, Mortgagor hereby waives any and all statutory or other rights of redemption
from sale under any order or decree of foreclosure of this Mortgage, on its own
behalf and on behalf of each and every person acquiring any interest in or title
to the Mortgaged Property subsequent to the date hereof.
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18. Interpretation with Other Documents. Notwith standing anything in this
Mortgage to the contrary, in the event of a conflict or inconsistency between
the Mortgage and the Credit Agreement, the provisions of the Credit Agreement
shall govern.
19. Future Advances. This Mortgage is given for the purpose of securing
future advances which the Mortgagee may make to or for Mortgagor pursuant and
subject to the terms and provisions of the Credit Agreement, provided that the
maximum amount of principal indebtedness secured by the lien of this Mortgage
shall not exceed, at any one time, the sum of $13,200,000.00. The parties hereto
intend that, in addition to any other debt or obligation secured hereby, this
Mortgage shall secure unpaid balances of loan advances made after this Mortgage
is delivered to the Register of Deeds, Johnson County, Kansas, whether made
pursuant to an obligation of Mortgagee or otherwise, and in such event, such
advances up to the maximum principal amount of $13,200,000.00 shall be secured
to the same extent as if such future advances were made on the date hereof,
although there may be no advance made at the time of execution hereof and
although there may be no indebtedness outstanding at the time any advance is
made. Such loan advances may or may not be evidenced by notes executed pursuant
to the Credit Agreement.
20. Invalid Provisions to Affect No Others. In the event that any of the
covenants, agreements, terms or provisions contained in this Mortgage shall be
invalid, illegal or unen forceable in any respect, the validity of the remaining
covenants, agreements, terms or provisions contained herein or in the Credit
Agreement shall not be in any way affected, prejudiced or disturbed thereby. In
the event that the application of any of the covenants, agreements, terms or
provisions of this Mortgage is held to be invalid, illegal or unenforceable,
those covenants, agreements, terms and provisions shall not be in any way
affected, prejudiced or disturbed when otherwise applied.
21. Changes. 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 the party against which enforcement of the
change, waiver, discharge or termination is sought. To the extent permitted by
law, any agreement hereafter made by Mortgagor and Mortgagee relating to this
Mortgage shall be superior to the rights of the holder of any intervening lien
or encumbrance.
22. Time of Essence. Time is of the essence with respect to the provisions
of this Mortgage.
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23. Further Assurances. Mortgagor agrees, upon request of the Mortgagee,
from time to time, to execute, acknowledge, deliver and cause to be recorded (if
so requested) all such additional documents and further assurances of title and
do or cause to be done all such further acts as may be reasonably necessary to
preserve the liens and security interests created hereby, including the priority
thereof.
24. No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Mortgage. In the event an ambiguity or
question of intent or interpretation arises, this Mortgage shall be construed as
if drafted jointly by the parties hereto and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Mortgage.
IN WITNESS WHEREOF, this instrument is executed as of the day and year
first above written by the person or persons identified below on behalf of
Mortgagor (and said person or persons hereby represent that they possess full
power and authority to execute this instrument).
THE MORTGAGOR HEREBY DECLARES AND ACKNOWLEDGES THAT THE MORTGAGOR HAS
RECEIVED, WITHOUT CHARGE, A TRUE COPY OF THIS MORTGAGE.
MORTGAGOR:
GFSI, INC.
By /s/ John L. Menghini
---------------------------------
Its ______ President
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State of Kansas
County of Johnson
This instrument was acknowledged to me on February 25, 1997 by John L.
Menghini as President of GFSI, Inc., a Delaware corporation.
Kristi L. Wallace
------------------------------
Notary Public
(Seal)
My Commission Expires:
2-14-99
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Commercial
Johnson County, Kansas
EXHIBIT A
Legal Description
All of Lot 9 and part of Lot 13 and 15, "KANSAS COMMERCE CENTER", a subdivision
of Lenexa, Johnson County, Kansas, all being more particularly described as
follows: Beginning at the Southerlymost corner of said Lot 9; thence North 56
degrees 00 minutes 00 seconds East along the Southeasterly line of said Lot 9, a
distance of 175.00 feet; thence in a Northeasterly and Northerly direction,
continuing along said Southeasterly line and along a curve to the left, tangent
to the last described course, having a radius of 420.00 feet and a central angle
of 58 degrees 15 minutes 44 seconds, an arc distance of 427.08 feet; thence
North 2 degrees 15 minutes 44 seconds West along the East line of said Lot 9 and
tangent to said curve, a distance of 135.00 feet; thence in a Northerly,
Northwesterly and Westerly direction along the Northeasterly line of said Lot 9
and along a curve to the left, tangent to the last described course, having a
radius of 320.00 feet and a central angle of 89 degrees 56 minutes 05 seconds,
an arc distance of 502.29 feet; thence South 87 degrees 48 minutes 11 seconds
West, along the Northerly line of said Lot 9, and tangent to the last said
curve, a distance of 60.00 feet; thence in a Westerly, Southwesterly and
Southerly direction along the Northwesterly line of said Lot 9 and along a curve
to the left, tangent to the last described course, having a radius of 320.00
feet and a central angle of 80 degrees 06 minutes 00 seconds, an arc distance of
447.36 feet; thence South 7 degrees 42 minutes 11 seconds West along the
Westerly line of said Lot 9 and tangent to the last described curve, a distance
of 60.79 feet; thence in a Southerly and Southwesterly distance of 60.79 feet;
thence in a Southerly and Southwesterly direction along the Westerly line of
said Lot 9 and along the Northwesterly line of said Lot 13 and along a curve to
the right, tangent to the last described course, have a radius of 380.00 feet
and a central angle of 54 degrees 17 minutes 38 seconds, an arc distance of
360.09 feet; thence South 2 degrees 18 minutes 17 seconds East, a distance of
149.44 feet; thence North 87 degrees 48 minutes 11 seconds East, a distance of
375.21 feet to a point on the Northeasterly line of said Lot 15 that is South 66
degrees 05 minutes 00 seconds East, a distance of 95.00 feet from the
Northerlymost corner thereof; thence South 66 degrees 05 minutes 00 seconds East
along the last said Northeasterly line, a distance of 155.00 feet to an angle
point therein; thence South 34 degrees 00 minutes 00 seconds East along the
Northeasterly line of said Lot 15, a distance of 100.00 feet to the point of
beginning.
110th Street
Johnson County, Kansas
EXHIBIT A
Legal Description
A tract of land in the South 1/2 of Section 8, Township 13, Range 24, City of
Lenexa, Johnson County, Kansas said tract being more particularly described as
follows: Commencing at the Southeast corner of the Southeast 1/4 of Section 8,
Township 13, Range 24, City of Lenexa, Johnson County, Kansas; thence North
02(degree) 13' 25" West on the East line of the Southeast 1/4 of Section 8,
Township 13, Range 24, 614.97 feet to a point; thence South 88(degree) 02' 50"
West, 2460.01 feet on the existing Northerly Right-of-Way Line of 110th Street
and its Westerly prolongation to a point; said point being on the existing
Westerly Right-of-Way Line of Lakeview Avenue and also being the True Point of
Beginning; thence continuing South 88(degree) 02' 50" West, 726.00 feet to a
point; thence North 02(degree) 13' 25" West, 360.00 feet to a point; thence
North 88(degree) 02' 50" East, 726.00 feet to a point on the existing Westerly
Right-of-Way Line of Lakeview Avenue, thence South 02(degree) 13' 25" East, on
the existing Westerly Right-of-Way Line of Lakeview Avenue, 360.00 feet to the
True Point of Beginning.
Commercial
EXHIBIT B
Permitted Exceptions
Those title exceptions listed on the certain "marked-up" title
commitment/policy no. 97-1233, dated ____________, issued by Chicago Title
Insurance Company for the property described on Exhibit A hereto.
Commercial
EXHIBIT B
Permitted Exceptions
Those title exceptions listed on that certain "marked-up" title
commitment/policy no. 97-1233, dated ______________, issued by Chicago Title
Insurance Company for the property described on Exhibit A hereto.