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EXHIBIT 10.10(e)
MORTGAGE, DEED OF TRUST, ASSIGNMENT OF LEASES
AND RENTS, SECURITY AGREEMENT and FINANCING STATEMENT
THIS MORTGAGE, DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT and FINANCING STATEMENT (herein sometimes called "Mortgage") is made
as of May 6, 1994, by and between the undersigned Mortgagor (herein, together
with its successors and assigns, the "Mortgagor"), and Continental Bank N.A.,
as Agent under the Credit Agreement referred to below (herein, together with
its successors and assigns, called the "Mortgagee").
R E C I T A L S
A. Credit Agreement. Pursuant to a Credit Agreement, dated as of
May 6, 1994 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among the Mortgagor, various financial institutions
(collectively the "Banks" and individually each a "Bank") and the Mortgagee,
the Banks have agreed to make revolving loans in an amount not to exceed
thirty-five million dollars ($35,000,000). In addition, the Mortgagor has the
right, pursuant to the terms of the Credit Agreement, to request that the
Issuing Bank (as defined in the Credit Agreement) issue letters of credit in
the aggregate amount of Two Million Dollars ($2,000,000) expiring no later than
May 6, 1997 (herein such letters of credit, together with all renewals,
extensions and modifications thereof, are collectively referred to as the
"Letters of Credit"). In connection therewith the Company has executed
promissory notes in favor of the Banks (herein, such promissory notes, together
with any and all amendments or supplements thereto, extensions thereof and
notes which may be taken in whole or partial renewal, substitution or extension
thereof, shall be collectively called the "Note") due and payable in full if
not sooner paid on or before May 6, 1997, subject to extension and acceleration
as set forth in the Note and the Credit Agreement, bearing interest as provided
in the Note on the principal amount thereof from time to time outstanding.
Unless otherwise defined herein or defined by reference to other documents or
instruments, terms used herein which are defined or defined by reference to
other documents or instruments in the Credit Agreement shall have the same
meanings when used herein as such terms have therein.
B. Debt Papers. The Note, the Credit Agreement, the Letters of
Credit, and any other documents and instruments executed and delivered by or
for the benefit of the Mortgagor, in connection with the Note, the Letters of
Credit or the Credit Agreement or as security therefor, including any Hedging
Agreement entered into by
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the Company with any Bank or its affiliate in connection with the Credit
Agreement and any other documents and instruments executed and delivered by or
for the benefit of the Mortgagor in connection with the Credit Agreement or
security therefore, or for the purpose of supplementing or amending all or any
of the foregoing, as the same may be amended, modified or supplemented from
time to time, are hereinafter referred to as the "Debt Papers". For purposes
hereof, "Collateral Documents" shall mean all documents and instruments
pursuant to which a lien is granted to Mortgagee (or to any agent, trustee, or
other party acting on behalf of Mortgagee) as security for any of the
Liabilities, as the same may be amended, modified or supplemented from time to
time.
C. The Liabilities. As used in this Mortgage, the term "Liabilities"
means and includes all of the following: (i) all obligations of the Mortgagor
to the Mortgagee and the Banks and their respective successors and assigns
under or in connection with the Credit Agreement, the Note, the Letters of
Credit or any of the other Debt Papers and (ii) all other obligations of the
Mortgagor to the Mortgagee and the Banks and their respective successors and
assigns, in each case howsoever created, arising or evidenced, whether direct
or indirect, joint or several, absolute or contingent, now or hereafter
existing, or due or to become due, arising out of or in connection with the
Credit Agreement or any of the other Debt Papers, including, without
limitation, all indebtedness of any kind arising under, and all amounts of any
kind which at any time become due or owing to the Mortgagee under or with
respect to, this Mortgage, all of the covenants, obligations and agreements in,
under or pursuant to the Note, the Credit Agreement, this Mortgage, and the
other Debt Papers, any and all advances, costs or expenses paid or incurred by
the Mortgagee to protect any or all of the Collateral (hereinafter defined) and
other collateral under the Debt Papers, to perform any obligation of the
Mortgagor hereunder and any obligation of the Mortgagor under the Debt Papers
or collect any amount owing to the Mortgagee which is secured hereby or under
the Debt Papers; interest on all of the foregoing; and all costs of enforcement
and collection (including, without limitation, attorneys' fees and court costs)
of this Mortgage, the Debt Papers and the Liabilities. Any future advances
under the Note, the Letters of Credit or any Hedging Agreement entered into by
the Mortgagor with any Bank or its affiliate, whether obligatory or made at the
option of the Mortgagee, shall be secured by this Mortgage, and shall be
entitled to the same priority as if such future advances were made on the date
hereof.
D. The Collateral. For purposes of this Mortgage, the term
"Collateral" means and includes all right, title and interest of the Mortgagor
in and to all of the following:
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(i) Real Estate. All of the land described on Exhibit A attached
hereto (the "Land"), together with all and singular the tenements, rights,
easements, hereditaments, rights of way, privileges, liberties, appendages and
appurtenances now or hereafter belonging or in anywise appertaining to the Land
(including, without limitation, all rights relating to storm and sanitary
sewer, water, gas, electric, railway and telephone services); all development
rights, air rights, water, water rights, water stock, gas, oil, minerals, coal
and other substances of any kind or character underlying or relating to the
Land; all estate, claim, demand, right, title or interest of the Mortgagor in
and to any street, road, highway, or alley (vacated or otherwise) adjoining the
Land or any part thereof; all strips and gores belonging, adjacent or
pertaining to the Land; and any after-acquired title to any of the foregoing
(all of the foregoing is herein referred to collectively as the "Real Estate");
(ii) Improvements and Fixtures. All buildings, structures,
replacements, furnishings, fixtures, fittings and other improvements and
property of every kind and character now or hereafter located or erected on the
Real Estate and owned or purported to be owned by the Mortgagor, together with
all building or construction materials, equipment, appliances, machinery, plant
equipment, fittings, apparatus, fixtures and other articles of any kind or
nature whatsoever now or hereafter found on, affixed to or attached to the Real
Estate and owned or purported to be owned by the Mortgagor, including (without
limitation) all motors, boilers, engines and devices for the operation of
pumps, and all heating, electrical, lighting, power, plumbing, air
conditioning, refrigeration and ventilation equipment (all of the foregoing is
herein referred to collectively as the "Improvements");
(iii) Personal Property. All furniture, furnishings, equipment
(including, without limitation, telephone and other communications equipment,
window cleaning, building cleaning, monitoring, garbage, air conditioning, pest
control and other equipment) and all other tangible property of any kind or
character now or hereafter owned or purported to be owned by the Mortgagor and
used or useful in connection with the Real Estate, regardless of whether
located on the Real Estate or located elsewhere including, without limitation,
all rights of the Mortgagor under any lease to furniture, furnishings, fixtures
and other items of personal property at any time during the term of such lease
below (all of the foregoing is herein referred to collectively as the "Goods");
(iv) Intangibles. All goodwill, trademarks, trade names, option
rights, purchase contracts, books and records and general intangibles of the
Mortgagor relating to the Real Estate or the Improvements and all accounts,
contract rights, instruments, chattel paper and other rights of the Mortgagor
for payment of
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money to it for property sold or lent by it, for services rendered by it, for
money lent by it, or for advances or deposits made by it, and any other
intangible property of the Mortgagor related to the Real Estate or the
Improvements (all of the foregoing is herein referred to collectively as the
"Intangibles"); and
(v) Rents. All rents, issues, profits, royalties, avails, income and
other benefits derived or owned by the Mortgagor directly or indirectly from
the Real Estate or the Improvements (all of the foregoing is herein
collectively called the "Rents");
(vi) Leases. All rights of the Mortgagor under all leases, licenses,
occupancy agreements, concessions or other arrangements, whether written or
oral, whether now existing or entered into at any time hereafter, whereby any
Person agrees to pay money to the Mortgagor or any consideration for the use,
possession or occupancy of, or any estate in, the Real Estate or the
Improvements or any part thereof, and all rents, income, profits, benefits,
avails, advantages and claims against guarantors under any thereof (all of the
foregoing is herein referred to collectively as the "Leases"); and
(vii) Other Property. All other property or rights of the Mortgagor
of any kind or character related to the Real Estate or the Improvements, and
all proceeds (including insurance and condemnation proceeds) and products of
any of the foregoing. (All of the Real Estate and the Improvements, and any
other property which is real estate under applicable law, is sometimes referred
to collectively herein as the "Premises").
G R A N T
NOW THEREFORE, for and in consideration of the Banks making any loan,
advance or other financial accommodation to or for the benefit of the
Mortgagor, including sums advanced under the Note, the Letters of Credit or any
Hedging Agreement, and in consideration of the various agreements contained
herein, in the Note or any Hedging Agreement, the Credit Agreement, the Letters
of Credit and in the Debt Papers, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the Mortgagor, and in order to secure the full, timely and proper payment and
performance of each and every one of the Liabilities,
THE MORTGAGOR HEREBY MORTGAGES, WARRANTS, CONVEYS, TRANSFERS AND
ASSIGNS TO THE MORTGAGEE, AND GRANTS TO THE MORTGAGEE AND ITS SUCCESSORS AND
ASSIGNS FOREVER A CONTINUING SECURITY INTEREST IN AND TO, ALL OF THE
COLLATERAL,
TO HAVE AND TO HOLD the Premises unto the Mortgagee, its successors
and assigns, forever, hereby expressly waiving and
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releasing any and all right, benefit, privilege, advantage or exemption under
and by virtue of any and all statutes and laws of the state or other
jurisdiction in which the Real Estate is located providing for the exemption of
homesteads from sale on execution or otherwise.
The Mortgagor hereby covenants with and warrants to the Mortgagee and
with the purchaser at any foreclosure sale: that at the execution and delivery
hereof it is well seized of the Premises, and of a good, indefeasible estate
therein, in fee simple; that the Collateral is free from all encumbrances
whatsoever (and any claim of any other Person thereto) other than the security
interest granted to the Mortgagee herein and pursuant to the Debt Papers and
liens and encumbrances permitted under Section 10.8 of the Credit Agreement
(the "Permitted Exceptions"); that it has good and lawful right to sell,
mortgage and convey the Collateral; and that it and its successors and assigns
will forever warrant and defend the Collateral against all claims and demands
whatsoever with the exception of the Permitted Exceptions.
I. C O V E N A N T S A N D A G R E E M E N T S
O F T H E M O R T G A G O R
Further to secure the payment and performance of the Liabilities, the
Mortgagor hereby covenants, warrants and agrees with the Mortgagee as follows:
1.1 Payment of Liabilities. The Mortgagor agrees that it will pay,
timely and in the manner required in the appropriate documents or instruments,
all amounts due under the Credit Agreement and all other Liabilities (including
fees and charges). All sums payable by the Mortgagor hereunder shall be paid
without demand, counterclaim, offset, deduction or defense. The Mortgagor
waives all rights now or hereafter conferred by statute or otherwise to any
such demand, counterclaim, offset, deduction or defense.
1.2 Payment of Taxes. The Mortgagor will pay or cause to be paid
before delinquent all taxes and assessments, general or special, and any and
all levies, claims, charges, expenses and liens, ordinary or extraordinary,
governmental or non-governmental, statutory or otherwise, due or to become due,
that may be levied, assessed, made, imposed or charged on or against the
Collateral or any property used in connection therewith, and will pay before
delinquent any tax or other charge on the interest or estate in lands created
or represented by this Mortgage or by any of the Debt Papers, whether levied
against the Mortgagor or the Mortgagee or otherwise.
1.3 Maintenance and Repair. The Mortgagor will: not abandon the
Premises; not do or suffer anything to be done which would
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materially depreciate or impair the value of the Collateral, reasonable wear
and tear excepted, or the security of this Mortgage; not remove or demolish any
of the Improvements; pay before delinquent for all labor and materials for all
construction, repairs and improvements to or on the Premises; not make any
changes, additions or alterations to the Premises or the Improvements except as
required by any applicable governmental requirement or as otherwise approved in
writing by the Mortgagee; maintain, preserve and keep the Goods and the
Improvements in good, safe and insurable condition and repair to the extent
necessary to conduct the Company's business in all material respects and
promptly make any needful and proper repairs, replacements, renewals, additions
or substitutions required by wear, damage, obsolescence or destruction, all as
promptly as possible under the circumstances but in all cases in compliance
with any time period provided under applicable requirements of governmental
authorities and insurance underwriters and all to the extent necessary to
conduct the Company's business in all material respects; not commit, suffer, or
permit waste of any part of the Premises; and maintain all grounds and abutting
streets and sidewalks in good and neat order and repair to the extent necessary
to conduct the Company's business in all material respects; provided that (i)
the Mortgagor may make changes, additions or alterations to the Premises and
may remove or demolish any of the Improvements to the extent that the cost of
the foregoing does not exceed $500,000 in any Fiscal Year or to the extent that
the Mortgagee does not object within 21 days after receiving notice of the
foregoing actions.
1.4 Sales; Liens. The Mortgagor will not: sell, lease, assign,
transfer or convey, or permit to be transferred or conveyed, the Collateral or
any part thereof or any interest or estate in any thereof (including any
conveyance into a trust or any conveyance of the beneficial interest in any
trust that may be holding title to the Premises) or remove any of the
Collateral from the Premises or from the state in which the Real Estate is
located except as permitted by Section 10.12 of the Credit Agreement or not
included in the definition of "Asset Sale" in the Credit Agreement; or create,
suffer or permit to be created or to exist any mortgage, lien, claim, security
interest, charge, encumbrance or other right or claim of any kind whatsoever
upon the Collateral or any part thereof, except the Permitted Exceptions.
1.5 Stamp and Other Taxes. If the Federal, or any state, county,
local, municipal or other, government or any subdivision of any thereof having
jurisdiction, shall levy, assess or charge any tax (excepting therefrom any
income tax on the Banks receipt of interest payments on the principal portion
of the Loan Amount), assessment or imposition upon this Mortgage, the Notes,
any of the other Liabilities, or any of the other Debt Papers, the interest of
the Mortgagee in the Collateral, or any of the foregoing, or upon the Mortgagee
by reason of or as holder of any of the foregoing, or
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shall at any time or times require revenue stamps to be affixed to this
Mortgage, the Notes, or any of the other Debt Papers, the Mortgagor shall pay
all such taxes and stamps to or for the Mortgagee before they become
delinquent. If any law or regulation is enacted or adopted permitting,
authorizing or requiring any material tax, assessment or imposition to be
levied, assessed or charged, which law or regulation prohibits the Mortgagor
from paying the tax, assessment, stamp, or imposition to or for the Mortgagee,
then all sums hereby secured shall become immediately due and payable at the
option of the Mortgagee.
1.6 Insurance. The Mortgagor will at all times maintain or cause to
be maintained on the Goods, the Improvements and on all other Collateral, all
insurance reasonably required at any time or from time to time by the Mortgagee
and in any event all-risk property insurance covering, without limitation,
fire, extended coverage, vandalism and malicious mischief, in an amount which
is not less than 100% of the replacement cost of the Improvements and Goods
without consideration for depreciation, with an inflation guard endorsement,
insurance against business interruption for such occurrences and in such
amounts as the Mortgagee may reasonably require, and insurance against flood if
required by the Federal Flood Disaster Protection Act of 1973 and regulations
issued thereunder, and comprehensive general public liability insurance,
protecting the Mortgagor in an amount reasonably acceptable to the Mortgagee,
and all other insurance commonly or, in the judgment of the Mortgagee,
prudently maintained by those whose business, improvement to, and use of real
estate is similar to that of the Mortgagor, all in amounts reasonably
satisfactory to the Mortgagee, and all of such insurance to be maintained in
such form and with such companies as shall be approved by the Mortgagee, and to
deliver to and keep deposited with the Mortgagee original certificates and
certified copies of all policies of such insurance and renewals thereof, with
premiums prepaid, and with standard non-contributory mortgagee and loss payable
clauses satisfactory to the Mortgagee, and clauses providing for not less than
10 days' prior written notice to the Mortgagee of cancellation or material
modification of such policies attached thereto in favor of the Mortgagee and
successors and assigns of each. All of the above-mentioned original insurance
policies or certified copies of such policies and certificates of such
insurance satisfactory to the Mortgagee, together with receipts for the payment
of premiums thereon, shall be delivered to and held by the Mortgagee, which
delivery shall constitute an assignment to the Mortgagee of a security interest
in all return premiums. The liability insurance policies required hereunder
shall name the Mortgagee as an additional insured. All renewal and replacement
policies shall be delivered to the Mortgagee at least thirty (30) days before
the expiration of the expiring policies. Subject to the terms of the
immediately succeeding paragraph, the Mortgagor agrees that any loss paid to
the Mortgagee under any of such policies shall be
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applied, at the option of the Mortgagee, toward pre-payment of the Notes or any
of the other Liabilities, or to the rebuilding or repairing of the damaged or
destroyed Improvements or other Collateral, as the Mortgagee in its sole and
unreviewable discretion may elect (which election shall not relieve the Grantor
of the duty to rebuild or repair).
Notwithstanding the foregoing, the Mortgagee shall consent to the
application of any proceeds of said insurance to the restoration of the
Collateral so damaged if and only if Mortgagor fulfills all of the following
conditions not waived in writing by Mortgagee: (i) that no Default or event
which, with the giving of notice or passage of time, or both, would constitute
an Event of Default, has occurred and is continuing under this Mortgage or the
Loan Documents; (ii) the Mortgagee is satisfied that the insurance proceeds
shall be sufficient to fully restore and rebuild the Collateral free and clear
of all liens except the lien of this Mortgage and the Permitted Exceptions, or
in the event that such proceeds are in Mortgagee's sole judgment insufficient
to restore and rebuild the Collateral, then Mortgagor shall deposit upon demand
the shortfall with Mortgagee; (iii) that the excess of said insurance proceeds
above the amount necessary to complete such restoration or rebuilding, if any,
shall be applied as a reduction in the principal amount of the Note; and (iv)
any and all monies which are made available for restoration and rebuilding
hereunder shall be disbursed through Mortgagee, the title company insuring this
Mortgage, or a title insurance and trust company satisfactory to Mortgagee, in
accordance with prudent construction lending practice, including, if requested
by Mortgagee, monthly lien waivers and title insurance date-downs, or in any
other manner proposed by Mortgagor which is approved by Mortgagee.
The Mortgagor hereby empowers the Mortgagee, in its discretion, to
settle, compromise and adjust any and all claims or rights under any insurance
policy maintained by the Mortgagor relating to the Collateral; provided,
however, that so long as no Event of Default or event which, with the giving of
notice or passage of time, or both, would constitute a Default, has occurred
and remains uncured, Mortgagor shall have the right, subject to Mortgagee's
approval for amounts in excess of $500,000, which approval shall not be
unreasonably withheld or delayed, to settle and compromise such claims. In the
event of foreclosure of this Mortgage or other transfer of title to the
Premises in extinguishment of the indebtedness secured hereby, all right, title
and interest of the Mortgagor in and to any insurance policies then in force
shall pass to the purchaser or grantee. Nothing contained in this Mortgage
shall create any responsibility or obligation on the Mortgagee to collect any
amounts owing on any insurance policy or resulting from any condemnation, to
rebuild or replace any damaged or destroyed Improvements or other Collateral or
to perform any other act hereunder. The Mortgagee shall not by the fact of
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approving, disapproving, accepting, preventing, obtaining or failing to obtain
any insurance, incur any liability for or with respect to the amount of
insurance carried, the form or legal sufficiency of insurance contracts,
solvency of insurance companies, or payment or defense of lawsuits, and the
Mortgagor hereby expressly assumes full responsibility therefor and all
liability, if any, with respect thereto.
1.7 Casualty Loss or Eminent Domain. In case the Collateral, or
any part or interest in any thereof, is damaged or destroyed or taken by
condemnation, prior to a Default, condemnation awards which may be paid in
connection with such damage or taking shall be applied, at the option of the
Mortgagor, either to pre-payment of the Note or any of the other Liabilities,
or to repair and restoration of the Collateral. After a Default, such
condemnation awards shall be applied to prepayment of the Liabilities in such
order as Mortgagee, in its absolute discretion, may elect.
1.8 No Mechanics' Liens. The Mortgagor will not suffer any
mechanic's, laborer's or materialmen's lien to be created or remain outstanding
upon the Premises or any part thereof, except as permitted by Section 10.8 of
the Credit Agreement. Anything herein contained to the contrary
notwithstanding, the Mortgagor shall not be deemed in Default with respect to
the provisions of this Section if the Mortgagor provides the Mortgagee with
written notice of the Mortgagor's good faith intention to diligently contest
such claim or lien (and the Mortgagor does so contest such claim or lien) at
the Mortgagor's sole expense and, if requested by the Mortgagee, the Mortgagor
furnishes to the Mortgagee either a bond, in form and with sureties reasonably
satisfactory to the Mortgagee, or a title insurance policy insuring over such
lien. The Mortgagor agrees to promptly deliver to the Mortgagee a copy of any
notices that the Mortgagor receives with respect to any pending or threatened
lien or the foreclosure thereof.
1.9 The Mortgagee's Performance. If the Mortgagor fails to pay or
perform any of its obligations herein contained (including payment of expenses
of foreclosure and court costs), the Mortgagee may (but need not), as agent or
attorney-in-fact of the Mortgagor, make any payment or perform (or cause to be
performed) any obligation of the Mortgagor hereunder, in any form and manner
deemed expedient by the Mortgagee, and any amount so paid or expended (plus
reasonable compensation to the Mortgagee for its out-of-pocket and other
expenses for each matter for which it acts under this Mortgage), with interest
thereon at the Alternate Reference Rate plus 3%, shall be added to the
principal debt hereby secured and shall be repaid to the Mortgagee upon demand.
1.10 Subrogation. To the extent that the Mortgagee, on or after the
date hereof, pays any sum under any provision of law or
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any instrument or document creating any lien or other interest prior or
superior to the lien of this Mortgage, or the Mortgagor or any other Person
pays any such sum with the proceeds of the loan secured hereby, the Mortgagee
shall have and be entitled to a lien or other interest on the Collateral equal
in priority to the lien or other interest discharged and the Mortgagee shall be
subrogated to, and receive and enjoy all rights and liens possessed, held or
enjoyed by, the holder of such lien, which shall remain in existence and
benefit the Mortgagee in securing the Liabilities.
II. D E F A U L T
Each of the following shall constitute a default ("Default") hereunder:
2.1 Note. The occurrence of an Event of Default under the terms and
provisions of the Note or the Credit Agreement; or
2.2 Provisions of this Mortgage. Non-compliance by the Mortgagor
with, or failure by the Mortgagor to perform, any agreement contained herein
(other than any non-compliance or failure which constitutes a Default under
Section 2.1) and continuance of such non-compliance or failure for ten (10)
days after notice thereof with respect to the payment of any amounts required
to be paid under this Mortgage or for thirty (30) days after notice thereof to
the Mortgagor from the Mortgagee with respect to all other Defaults under this
Mortgage.
III. R E M E D I E S
3.1 Acceleration. Upon the occurrence of any Default, the entire
indebtedness evidenced by the Note, the Credit Agreement and all other
Liabilities together with interest thereon at the default rate specified in the
Credit Agreement shall, subject to the terms of the Note, at the option of the
Mortgagee, become immediately due and payable.
3.2 Remedies Cumulative. No remedy or right of the Mortgagee
hereunder or under the Note, the Credit Agreement or any of the Debt Papers, or
otherwise, or available under applicable law or in equity, shall be exclusive
of any other right or remedy, but each such remedy or right shall be in
addition to every other remedy or right now or hereafter existing under any
such document or under applicable law or in equity. No delay in the exercise
of, or omission to exercise, any remedy or right accruing on any Default shall
impair any such remedy or right or be construed to be a waiver of any such
Default or an acquiescence therein, nor shall it affect any subsequent Default
of the same or a different nature. Every such remedy or right may be exercised
concurrently or
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independently, and when and as often as may be deemed expedient by the
Mortgagee. All obligations of the Mortgagor, and all rights, powers and
remedies of the Mortgagee, expressed herein shall be in addition to, and not in
limitation of, those provided by law or in equity or in the Notes or any other
Debt Papers or any other written agreement or instrument relating to any of the
Liabilities or any security therefor.
3.3 Foreclosure; Receiver. Upon the occurrence of any Default, the
Mortgagee shall also have the right immediately to foreclose this Mortgage or
proceed by power of sale (if available under the law of the jurisdiction where
the Collateral is located). Upon the filing of any complaint for that purpose,
the court in which such complaint is filed may (if permitted under the law of
the jurisdiction where the Collateral is located), upon application of the
Mortgagee or at any time thereafter, either before or after foreclosure sale,
and without notice to the Mortgagor or to any party claiming under the
Mortgagor and without regard to the solvency or insolvency at the time of such
application of any Person then liable for the payment of any of the
Liabilities, without regard to the then value of the Premises or whether the
same shall then be occupied, in whole or in part, as a homestead, by the owner
of the equity of redemption, and without regarding any bond from the
complainant in such proceedings, appoint a receiver for the benefit of the
Mortgagee, with power to take possession, charge, and control of the Premises,
to lease the same, to keep the buildings thereon insured and in good repair,
and to collect all Rents during the pendency of such foreclosure suit, and, in
case of foreclosure sale and a deficiency, during any period of redemption.
This Mortgage may be foreclosed once against all, or successively
against any portion or portions, of the Premises, as the Mortgagee may elect,
until all of the Premises have been foreclosed against and sold. As part of
the foreclosure, the Mortgagee in its discretion may, with or without entry,
personally or by attorney, sell to the highest bidder all or any part of the
Premises, and all right, title, interest, claim and demand therein, as an
entirety, or in separate lots, as Mortgagee may elect, and in one sale or in
any number of separate sales held at one time or at any number of times, all in
any manner and upon such notice as provided by applicable law. Upon the
completion of any such sale or sales, Mortgagee shall transfer and deliver, or
cause to be transferred and delivered, to the purchaser or purchasers the
property so sold, in the manner and form as provided by applicable law, and
Mortgagee is hereby irrevocably appointed the true and lawful attorney-in-fact
of Mortgagor, in its name and stead, to make all necessary transfers of
property thus sold, and for that purpose Mortgagee may execute and deliver, for
and in the name of Mortgagor, all necessary instruments of assignment and
transfer, Mortgagor hereby ratifying and confirming all that said attorney-
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in-fact shall lawfully do by virtue hereof. In the case of any sale of the
Premises pursuant to any judgment or decree of any court at public auction or
otherwise, Mortgagee may become the purchaser, and for the purpose of making
settlement for or payment of the purchase price, shall be entitled to deliver
over and use the Credit Agreement and any claims for the debt thereunder in
order that there may be credited as paid on the purchase price the amount of
such debt. In case of any foreclosure of this Mortgage (or the commencement of
or preparation therefor) in any court, all expenses of every kind paid or
incurred by the Mortgagee for the enforcement, protection or collection of this
security, including court costs, attorneys' fees, stenographers' fees, costs of
advertising, and costs of title insurance and any other documentary evidence of
title, shall be paid by the Mortgagor.
3.4 Personal Property. If any Default shall occur, the Mortgagee may
exercise from time to time any rights and remedies available to it under
applicable law upon default in payment of indebtedness. Without limiting the
foregoing, the Mortgagee may exercise from time to time any rights and remedies
available to it under the Uniform Commercial Code or other applicable law as in
effect from time to time or otherwise available to it under applicable law.
The Mortgagor hereby expressly waives, to the fullest extent permitted by
applicable law, any and all other notices, demands, advertisements, hearings or
process of law in connection with the exercise by the Mortgagee of any of its
rights and remedies hereunder. The Mortgagor hereby constitutes the Mortgagee
its attorney-in-fact with full power of substitution to take possession of the
Collateral upon any Default and, as the Mortgagee in its sole discretion deems
necessary or proper, to execute and deliver all instruments required by the
Mortgagee to accomplish the disposition of the Collateral; this power of
attorney is a power coupled with an interest and is irrevocable while any of
the Liabilities are outstanding.
3.5 No Liability on Mortgagee. Notwithstanding anything contained
herein, the Mortgagee shall not be obligated to perform or discharge, and does
not hereby undertake to perform or discharge, any obligation, duty or liability
of the Mortgagor, whether hereunder or otherwise. The Mortgagee shall not have
responsibility for the control, care, management or repair of the Premises or
be responsible or liable for any negligence in the management, operation,
upkeep, repair or control of the Premises resulting in loss, injury or death to
any tenant, licensee, employee, stranger or other Person. No liability shall
be enforced or asserted against the Mortgagee in its exercise of the powers
granted to it under this Mortgage, and the Mortgagor expressly waives and
releases any such liability. Should the Mortgagee incur any such liability,
loss or damage under or by reason hereof, or in the defense of any claims or
demands, the Mortgagor agrees to
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reimburse the Mortgagee immediately upon demand for the full amount thereof,
including costs, expenses and attorneys' fees.
IV. G E N E R A L
4.1 Permitted Acts. The Mortgagor agrees that, without affecting or
diminishing in any way the liability of the Mortgagor or any other Person,
except any Person expressly released in writing by the Mortgagee (with the
consent of any pledgee of the Liabilities), for the payment or performance of
any of the Liabilities or for the performance of any obligation contained
herein or affecting the lien hereof upon the Collateral or any part thereof,
the Mortgagee may at any time and from time to time, without notice to or the
consent of any Person, (i) release any Person liable for the payment or
performance of the Note or any of the other Liabilities or any guaranty given
in connection therewith; extend the time for, or agree to alter the terms of
payment of, any indebtedness under the Notes or any of the other Liabilities or
any guaranty given in connection therewith; modify or waive any obligation;
(ii) subordinate, modify or otherwise deal with the lien hereof; (iii) accept
additional security of any kind for repayment of the Note or the other
Liabilities or any guaranty given in connection therewith; release any
Collateral or other property securing any or all of the Notes or the other
Liabilities or any guaranty given in connection therewith; (iv) make releases
of any portion of the Premises; consent to the making of any map or plat of the
Premises or the creation of any easements on the Premises or of any covenants
restricting the use or occupancy thereof; or (v) exercise or refrain from
exercising, or waive, any right the Mortgagee may have.
4.2 Legal Expenses. The Mortgagor agrees to indemnify the Mortgagee
from all loss, damage and expense, including (without limitation) attorneys'
fees, incurred in connection with any suit or proceeding in or to which the
Mortgagee may be made or become a party for the purpose of protecting the lien
or priority of this Mortgage.
4.3 Security Agreement; Fixture Filing. This Mortgage, to the extent
that it conveys or otherwise deals with personal property or with items of
personal property which are or may become fixtures, shall also be construed as
a security agreement under the Uniform Commercial Code as in effect in the
state in which the Premises are located, and this Mortgage constitutes a
financing statement filed as a fixture filing in the Official Records of the
County Recorder of the County in which the Premises are located with respect to
any and all fixtures included within the term "Collateral" as used herein and
with respect to any Goods or other personal property that may now be or
hereafter become such fixtures. For purposes of the foregoing, the Mortgagor
is the debtor (with its address as set forth below), the Mortgagee is the
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secured party (with its address as set forth below). If any item of Collateral
hereunder also constitutes collateral granted to the Mortgagee under any other
mortgage, agreement, document, or instrument, in the event of any conflict
between the provisions of this Mortgage and the provisions of such other
mortgage, agreement, document, or instrument relating to the Collateral, the
provision or provisions selected by the Mortgagee shall control with respect to
the Collateral.
4.4 Defeasance. Upon full payment of all indebtedness secured hereby
and satisfaction of all the Liabilities in accordance with their respective
terms and at the time and in the manner provided, and when the Mortgagee has no
further obligation to make any advance, or extend any credit hereunder, under
the Note or any Debt Papers, this conveyance shall be null and void, and
thereafter, upon demand therefor, an appropriate instrument of reconveyance or
release shall promptly be made by the Mortgagee to the Mortgagor, at the
expense of the Mortgagor.
4.5 Notices. Except as otherwise provided under applicable law, all
notices, demands and other communications hereunder to either party shall be
given in accordance with the provisions of Section 14.3 of the Credit
Agreement.
4.6 Successors; The Mortgagor; Gender. All provisions hereof shall
bind the Mortgagor and the Mortgagee and their respective successors, vendees
and assigns and shall inure to the benefit of the Mortgagee, its successors and
assigns, and the Mortgagor and its permitted successors and assigns. The
Mortgagor shall not have any right to assign any of its rights hereunder.
Except as limited by the preceding sentence, the word "Mortgagor" shall include
all Persons claiming under or through the Mortgagor and all Persons liable for
the payment or performance by the Mortgagor of any of the Liabilities whether
or not such Persons shall have executed the Note or this Mortgage. Wherever
used, the singular number shall include the plural, the plural the singular,
and the use of any gender shall be applicable to all genders.
4.7 Care by the Mortgagee. The Mortgagee shall be deemed to have
exercised reasonable care in the custody and preservation of any of the
Collateral assigned by the Mortgagor to the Mortgagee or in the Mortgagee's
possession if it takes such action for that purpose as the Mortgagor requests
in writing, but failure of the Mortgagee to comply with any such request shall
not be deemed to be (or to be evidence of) a failure to exercise reasonable
care, and no failure of the Mortgagee to preserve or protect any rights with
respect to such Collateral against prior parties, or to do any act with respect
to the preservation of such Collateral not so requested by the Mortgagor, shall
be deemed a failure to exercise reasonable care in the custody or preservation
of such Collateral.
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4.8 No Waiver; Writing. No delay on the part of the Mortgagee in the
exercise of any right or remedy shall operate as a waiver thereof, and no
single or partial exercise by the Mortgagee of any right or remedy shall
preclude other or further exercise thereof or the exercise of any other right
or remedy. The granting or withholding of consent by Mortgagee to any
transaction as required by the terms hereof shall not be deemed a waiver of the
right to require consent to future or successive transactions.
4.9 Governing Law. This Mortgage shall be a contract made under and
governed by the internal laws of the State where the Premises are located.
4.10 Waiver. The Mortgagor, on behalf of itself and all Persons now
or hereafter interested in the Premises or the Collateral, to the fullest
extent permitted by applicable law hereby waives all rights under all
appraisement, marshalling, homestead, moratorium, valuation, exemption, stay,
extension, and redemption statutes, laws or equities now or hereafter existing,
and hereby further waives the pleading of any statute of limitations as a
defense to any and all Liabilities secured by this Mortgage, and the Mortgagor
agrees that no defense, claim or right based on any thereof will be asserted,
or may be enforced, in any action enforcing or relating to this Mortgage or any
of this Collateral. Without limiting the generality of the preceding sentence,
the Mortgagor, on its own behalf and on behalf of each and every Person
acquiring any interest in or title to the Premises subsequent to the date of
this Mortgage, to the fullest extent permitted by applicable law, hereby
irrevocably waives any and all rights of redemption from sale under any order
or decree of foreclosure of this Mortgage or under any power contained herein
or under any sale pursuant to any statute, order, decree or judgment of any
court. The Mortgagor, for itself and for all Persons hereafter claiming
through or under it or who may at any time hereafter become holders of liens
junior to the lien of this Mortgage, hereby expressly waives and releases all
rights to direct the order in which any of the Collateral shall be sold in the
event of any sale or sales pursuant hereto and to have any of the Collateral
and/or any other property now or hereafter constituting security for any of the
indebtedness secured hereby marshalled upon any foreclosure of this Mortgage or
of any other security for any of said indebtedness.
4.11 JURY TRIAL. THE MORTGAGOR AND THE MORTGAGEE HEREBY EXPRESSLY
WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER THIS MORTGAGE OR ANY DEBT PAPERS TO WHICH IT IS A
PARTY, OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR
WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR
ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS MORTGAGE OR
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ANY RELATED DOCUMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
4.12 No Merger. It being the desire and intention of the parties
hereto that this Mortgage and the lien hereof do not merge in fee simple title
to the Premises, it is hereby understood and agreed that should the Mortgagee
acquire an additional or other interests in or to the Premises or the ownership
thereof, then, unless a contrary intent is manifested by the Mortgagee as
evidenced by an express statement to that effect in an appropriate document
duly recorded, this Mortgage and the lien hereof shall not merge in the fee
simple title, toward the end that this Mortgage may be foreclosed as if owned
by a stranger to the fee simple title.
4.13 Time of Essence. Time is declared to be of the essence in this
Mortgage, the Notes and the Debt Papers and of every part hereof and thereof.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Mortgage on the day and year first above written.
WITNESS: LARIZZA INDUSTRIES, INC.,
an Ohio corporation
By: /s/ Terence C. Seikel
Name: Terence C. Seikel
Title: Chief Financial Officer
Address of Mortgagor/Debtor:
201 West Big Beaver Road
Suite 1040
Troy, Michigan 48084
Attention: President
Federal I.D. No. 34-1376202
WITNESS: CONTINENTAL BANK N.A.
By: /s/ Steven Ahrenholz
Name: Steven Ahrenholz
Title: Vice President
Address of Mortgagee/Secured Party:
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Continental Bank N.A.
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Steven K. Ahrenholz
THIS INSTRUMENT WAS PREPARED BY
AND UPON RECORDING RETURN TO:
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
Attention: Patricia V. Gentry
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STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, , a Notary Public, do hereby certify
that , personally known to me to be the president of
Larizza Industries, Inc., an Ohio corporation, and personally known to me to be
the same person whose name is subscribed to the foregoing document, appeared
before me this day in person and acknowledged that as such president he/
she signed and delivered the said document as president of said
corporation pursuant to authority given by the Board of Directors of said
corporation as his/her free and voluntary act, and as the free and voluntary
act and deed of said corporation, for the uses and purposes therein set forth.
Given under my hand and notarial seal, this day of May, 1994.
Notary Public
Type or
Print Name:
My commission expires:
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STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, , a Notary Public, do hereby certify
that , personally known to me to be the
president of Continental Bank N.A., a national banking association, and
personally known to me to be the same person whose name is subscribed to the
foregoing document, appeared before me this day in person and acknowledged that
as such president he/she signed and delivered the said document
as president of said corporation, pursuant to authority given by
the Board of Directors of said corporation as his/her free and voluntary act,
as the free and voluntary act and deed of said corporation, for the uses and
purposes therein set forth.
Given under my hand and notarial seal, this day of May, 1994.
Notary Public
Type or
Print Name:
My commission expires: