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EXHIBIT 10.4
PREPARED BY AND UPON RECORDING, RETURN TO:
Mark D. Cress, Esquire
Bulkley, Richardson and Gelinas, LLP
1500 Main Street, Suite 2700
Springfield, MA 01115
MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS, AND
SECURITY AGREEMENT
between
ENESCO GROUP, INC., as Mortgagor
and
FLEET NATIONAL BANK, as Mortgagee
THIS MORTGAGE SECURES FUTURE OBLIGATIONS
AND ADVANCES PURSUANT TO 205 ILCS 5/5d.
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TABLE OF CONTENTS
Page
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1. DEFINITIONS ....................................................... 3
2. PAYMENT AND PERFORMANCE OF OBLIGATIONS ............................ 4
3. PAYMENT OF TAXES, ETC ............................................. 4
4. CONDITION; USE; REPAIR; INSPECTION ................................ 5
5. INSURANCE ......................................................... 5
6. INSURANCE PROCEEDS ................................................ 7
7. EMINENT DOMAIN PROCEEDS ........................................... 8
8. SUBORDINATION ..................................................... 9
9. DELINQUENCY OF PAYMENTS; FEES AND CHARGES.......................... 9
10. LEASES AND RENTS .................................................. 9
11. ADDITIONAL SECURITY ............................................... 10
12. STATUS REPORT ..................................................... 10
13. WAIVER; REDEMPTION ................................................ 10
14. NOTICE ............................................................ 10
15. PRIORITY OF LIEN .................................................. 11
16. MAINTENANCE OF MORTGAGOR; TRANSFERS ............................... 11
17. BANKRUPTCY ........................................................ 11
18. EVENTS OF DEFAULT ................................................. 12
19. REMEDIES .......................................................... 12
20. MORTGAGEE'S RIGHT TO CURE DEFAULT ................................. 13
21. FORECLOSURE SALE .................................................. 13
22. WARRANTY OF TITLE ................................................. 14
23. INDEMNIFICATION/SUBROGATION ....................................... 14
24. HAZARDOUS SUBSTANCES .............................................. 15
25. OTHER AGREEMENTS .................................................. 15
26. RESERVE REQUIREMENTS .............................................. 15
27. AMENDMENTS ........................................................ 16
28. MISCELLANEOUS ..................................................... 16
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MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, AND SECURITY AGREEMENT
(the "MORTGAGE") is made as of the of June, 2001 between ENESCO GROUP, INC. (the
"MORTGAGOR"), a Massachusetts corporation, having a principal place of business
located at 225 Windsor Drive, Itasca, Illinois 60143, and FLEET NATIONAL BANK as
"Agent" (the "MORTGAGEE"), a national banking association having a usual place
of business at One Monarch Place, Springfield, Massachusetts 01102.
Reference is made to the following facts:
WHEREAS, the Mortgagor is the Borrower under the terms of an
Amended and Restated Senior Revolving Credit Agreement dated as of August 23,
2000 between the Mortgagor and the Mortgagee, as amended by a First Amendment to
Amended and Restated Senior Revolving Credit Agreement dated as of November 27,
2000, as further amended by a Second Amendment to Amended and Restated Senior
Revolving Credit Agreement dated as of November 30, 2000, as further amended by
Third Amendment to Amended and Restated Senior Revolving Credit Agreement dated
as of March 23, 2001, as further amended by a Fourth Amendment to Amended and
Restated Senior Revolving Credit Agreement dated as of April 6, 2001, and as
further amended by a Fifth Amendment to Amended and Restated Senior Revolving
Credit Agreement dated as of even date herewith (as the same may be further
amended or restated from time to time, the "Credit Agreement"), pursuant to
which the Mortgagee has, subject to the terms and conditions set forth therein,
made certain credit facilities available to the Mortgagor including those
evidenced by a Borrower Note dated August 3, 2000 in the face amount of
$50,000,000, a Back-Up L/C Demand Note dated November 27, 2000 in the face
amount of $25,000,000, and a Back-Up F/X Demand Note dated November 27, 2000 in
the face amount of $10,000,000 (collectively, the "Notes"). All capitalized
terms used herein and not otherwise defined herein shall have their meanings as
defined in the Credit Agreement; and
WHEREAS, as security for the payment of all liabilities and the
performance of all obligations of the Mortgagor to the Mortgagee including,
without limitation, all liabilities and obligations of the Mortgagor to the
Mortgagee pursuant to the Credit Agreement and the Notes, the Mortgagor has
agreed to execute and deliver this Mortgage and grant the assignments and
security interests to the Mortgagee hereinafter described; and
WHEREAS, the Mortgagor desires to secure the following liabilities and
obligations (collectively, the "Obligations") of the Mortgagor to the Mortgagee:
(i) the payment of all principal, interest and other payments
due under the terms of the Credit Agreement, the Notes, this Mortgage and the
other Loan Documents up to a maximum principal amount of FIFTY MILLION DOLLARS
($50,000,000). It is the intention of the parties hereto that this Mortgage
shall secure not only existing indebtedness or advances made prior to or
contemporaneously with the execution hereof, but also (x) all future Advances
made by the Mortgagee under the Credit Agreement, the Notes, this Mortgage and
the other Loan Documents, whether such Advances are obligatory or to be made at
the option of the Mortgagee, or otherwise, (y) all additional Advances made by
the Mortgagee following any increase in the amount of the lending commitments or
other direct or contingent indebtedness under the Credit Agreement, this
Mortgage or the other Loan Documents as a result of an amendment of the Credit
Agreement, this Mortgage or the other Loan Documents, and (z) any and all
additional amounts and/or interest which the Mortgagor is required to pay to the
Mortgagee under the Credit Agreement, the Notes, this Mortgage or the other Loan
Documents, to the same extent as if such future or additional advances were made
and additional amounts and/or interest were incurred on the date hereof; and
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(ii) the payment, performance, discharge and satisfaction of
every covenant, agreement, warranty, representation, undertaking and condition
contained in this Mortgage, the Credit Agreement, or the other Loan Documents,
and all other documents now or hereafter executed by the Mortgagor incident to
the Credit Agreement, this Mortgage or the other Loan Documents, or any
amendment, extension, modification, replacement or re-casting of any one or more
of the same; and
(iii) all costs and expenses now or hereafter incurred by the
Mortgagee in respect of this Mortgage, the Credit Agreement, or any other Loan
Document and all other agreements (now or hereafter existing) between the
Mortgagor and, the Mortgagee including, without limitation, all attorneys' fees
and all costs and expenses incurred by the Mortgagee which costs and expenses
are directly or indirectly related to the Mortgagee's efforts to collect or
enforce any of the Obligations or to exercise or enforce any of the Mortgagee's
rights, remedies or powers under this Mortgage, the Indenture, the other Loan
Documents or any other agreement (now or hereafter existing) between the
Mortgagor and the Mortgagee including all court and litigation costs and
expenses.
NOW, THEREFORE, to secure the Obligations and for consideration paid,
the Mortgagor hereby grants, assigns, mortgages and warrants to the Mortgagee,
with MORTGAGE COVENANTS the Mortgagor's entire right, title and interest now
owned or hereafter acquired in and to the real property (the "Real Property")
located respectively at (i) 225 Windsor Drive, Itasca, Illinois, and (ii) One
Enesco Plaza, Elk Grove Village, Illinois, as more fully described on EXHIBIT A
attached hereto, together with the Mortgagor's entire right, title and interest,
now owned or hereafter acquired, in and to the following:
(a) All Improvements (as hereinafter defined), and the rents,
issues and profits therefrom;
(b) All rights, licenses, permits, approvals, contracts,
easements now or hereafter appurtenant thereto, and all other rights of the
Mortgagor of whatever kind or nature, whether running covenants or otherwise now
or hereafter appurtenant to the Real Property;
(c) Any other estate, title or interest in the Real Property
or Improvements, and in the streets and ways adjacent thereto, to the extent now
owned or hereafter acquired by the Mortgagor;
(d) All assignments of lease or subleases (the "Leases") now
existing or hereafter entered into by the Mortgagor with respect to all or any
portion of the Real Property and Improvements, and all the rents, issues,
profits, revenues, and other income received or receivable by the Mortgagor
under and by virtue of such Leases;
(e) That certain equipment and machinery which could be
construed to be fixtures on the Real Property, whether now owned or hereafter
acquired by the Debtor including, without limitation, all heating, air
conditioning, lighting and power equipment; sprinkler systems; pipes; pumps;
tanks; motors; generators; conduits; switchboards; plumbing, lifting, cleaning,
fire prevention, fire extinguishing, and ventilating apparatus; boilers,
furnaces, oil burners or units thereof; elevators; escalators; shades; awnings;
screens; storm doors and windows; cabinets; partitions; ducts and compressors;
carpeting; draperies; plants and shrubbery; together with all attachments and
additions thereto, substitutions therefor, and replacements and component parts
thereof, whether now or hereafter attached to or used or to be used or
considered fixtures on the Real Property; and
(f) All proceeds of the conversion, voluntary or involuntary,
of all or any portion of the above-described property into cash, negotiable
instruments or other instruments for the payment of money,
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chattel paper, security agreements, documents or liquidated claims, including,
without limitation, all insurance proceeds and all awards arising out of eminent
domain proceedings or other proceedings similar thereto.
The above-described Real Property and Improvements, and other rights described
in (a), (b), (c) and (d) above, together with any and all additions thereto or
replacements thereof, and together with all such property described in (e) and
(f) above, insofar as such property is, or can by agreement of the parties be
made, a part of the realty, are herein referred to as the "Real Estate." All
such property described in (e) and (f) above is hereinafter referred to as the
"Collateral". The Collateral and the Real Estate are collectively referred to as
the "Property", or such portion thereof as is appropriate to the context in
which the term "Property" is used.
It is intended that this Mortgage shall serve as a security agreement
granting Mortgagee a security interest in all of the Property not classified as
real property under applicable law, but including fixtures, in accordance with
the terms of the Uniform Commercial Code as adopted in the State of Illinois
(the "UCC"), as amended, modified or restated from time to time. As to all such
property, Mortgagee shall have, without limitation, all of the rights and
remedies of a secured party under the UCC. The recordation of this Mortgage
shall also constitute a fixture filing in accordance with the provisions of the
UCC. Mortgagor covenants and agrees to execute promptly upon request such
financing statements as Mortgagee may require from time to time, to cause same
to be filed in the appropriate jurisdiction, and to take such other actions as
Mortgagee may require in order to perfect the security interest created by this
Mortgage.
It is further intended that this Mortgage shall serve as a present and
absolute assignment of all of the Mortgagor's right, title and interest in and
to the Real Property, provided that, so long as there shall exist no Event of
Default (as hereinafter defined) hereunder, Mortgagor shall have the right to
the use and enjoyment of the Real Property. In no event shall the foregoing
assignment operate to place any liability on Mortgagee for the maintenance,
care, operation or condition of the Real Property until such time, if any, as
Mortgagee shall take possession and control of the Real Property.
The Mortgagor covenants, warrants and agrees with the Mortgagee as
follows:
1. Definitions. As used in this Mortgage, unless the context otherwise
requires, the following terms shall have the following meanings:
"Governmental Approvals" shall mean all approvals, certifications,
consents, licenses, permits, authorizations and other official action required
to be issued or taken by any Governmental Authorities for or with respect to the
matter with respect to which such term is used, including, without limitation
all applicable environmental, hazardous substances/materials, air and water
pollution, land use, flood hazard, coastal zone, waterways, wetlands, building,
fire safety, health, planning, subdivision, and zoning by-laws, rules,
regulations, permits and approvals.
"Governmental Authorities" shall mean all federal, state, county and
municipal governments and all governmental and quasi-governmental agencies,
authorities, boards, commissions, bureaus, departments, authorities, officials
and officers thereof, now or hereafter having jurisdiction over the Mortgagor,
the Real Estate, or the matter or the party with respect to which such term is
used.
"Improvements" shall mean the existing buildings on the Real Estate and
all improvements of every kind now or hereafter made to the Real Estate.
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"Laws and Other Governmental Requirements" shall mean all laws,
statutes, ordinances, orders, rules, regulations and requirements now in effect
or at any time hereafter enacted or issued by any Governmental Authorities which
are applicable to the Mortgagor, the Real Estate, or the matter or party with
respect to which such terms are used.
"Leases" shall mean any lease or leases by assignment or otherwise, or
sublease or subleases, for all or a portion of the Improvements or the Property
now or hereafter in effect entered into by the Mortgagor and a lessee or
sublessee from time to time in accordance with the Collateral Assignment and the
other Loan Documents.
"Other Applicable Requirements" shall mean all mortgages, deeds of
trust, leases, bank loans, credit agreements, contracts, understandings,
instruments, agreements, covenants, conditions and restrictions, public or
private, now in effect or hereafter arising which are applicable to or which are
binding on the Mortgagor, the Real Estate, the business or activity conducted
thereon, or the matter or party with respect to which such terms are used, or to
which the party with respect to which such terms are used is a party or by which
such party may be bound or affected.
2. Payment and Performance of Obligations. The Mortgagor shall make all
payments and perform all obligations under the Credit Agreement, the Notes, this
Mortgage and all other Loan Documents.
3. Payment of Taxes, Etc.
1. Unless the subject of a good faith dispute where adequate
reserves have been established by the Mortgagor, the Mortgagor shall
pay before the same become delinquent (and shall provide, by such time,
evidence of such payment, satisfactory to the Mortgagee) all "taxes and
other charges" payable by Mortgagor, if applicable or related to the
Property, and all other taxes, charges, sewer use fees, water rates and
assessments of every name and nature, whether or not assessed against
the Mortgagor, if applicable or related to the Property, or any
interest therein, or the debt, obligation or any agreement secured
hereby, or the disbursement or the application of the proceeds thereof.
2. Further, the Mortgagor shall pay when due all fees and charges
incurred incident to the loan transaction described in the Credit
Agreement secured by this Mortgage, the assurance of the security
represented by this Mortgage, and the enforcement of this Mortgage, the
Credit Agreement, the other Loan Documents, and any other obligation
secured by this Mortgage.
3. The undertakings of the Mortgagor contained in this Paragraph 3
with respect to items other than the payment of real estate taxes,
sewer use fees, water rates, and assessments, shall survive the payment
of all Obligations secured hereby; however, after an acknowledgment of
the satisfaction of the Obligations, or a discharge of this Mortgage,
this Mortgage shall not be security for the performance of such
undertakings, notwithstanding the survival of the same; but,
thereafter, the Mortgagee shall look solely to the Mortgagor,
personally, for the performance of such undertakings.
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4. In the event of the enactment after this date of any Laws and
Other Governmental Requirements requiring the Mortgagee to pay all or
any part of the taxes, assessments, charges or liens herein required to
be paid by the Mortgagor, or changing in any way the taxation of
mortgages or debts secured by mortgages or the manner of collection of
taxes, so as to affect this Mortgage or the obligations secured hereby
then the Mortgagor, upon demand by Mortgagee, shall pay such taxes or
assessments, or reimburse Mortgagee therefor; provided, however, that
if in the opinion of counsel for Mortgagee (i) it might be unlawful to
require Mortgagor to make such payment or (ii) the making of any such
payment might result in the imposition of interest beyond the maximum
amount permitted by law, then the Mortgagee may elect to declare all of
the indebtedness secured hereby to be due and payable sixty (60) days
from the giving of such notice.
4. Condition; Use; Repair; Inspection.
1. The Mortgagor shall diligently and continuously from the date
hereof shall keep the Property in good order, repair and condition,
damage from casualty expressly not excepted, and shall not permit or
commit waste on the Real Estate, nor remove or alter anything which
constitutes a part of the Property without the consent of the
Mortgagee, other than removals or alterations in the ordinary course of
Mortgagor's business which do not have a material affect on the value
of the Property.
2. The Property shall be maintained, operated and used in accordance
with all Governmental Approvals and Laws and other Governmental
Requirements and all Other Applicable Requirements. To the fullest
extent permissible according to law, and without limiting any other
rights or remedies of the Mortgagee, the Mortgagor unconditionally,
absolutely and irrevocably agrees to defend, hold harmless and
indemnify the Mortgagee and each of its officers, employees, agents and
contractors against all damages (including consequential damages),
claims, costs, losses and liabilities, including attorney's fees,
suffered or incurred by the Mortgagee on account of the violation of
any Governmental Approvals, Laws and Other Governmental Requirements,
or any Other Applicable Requirements or the imposition by any
Governmental Authority of a lien, attachment or other encumbrance on
any part of the Property. The foregoing indemnification shall survive
satisfaction of the Obligations and the release or assignment of this
Mortgage. All construction on, improvements to, and alterations of the
Real Estate shall comply with, and each and every part of the Property
shall be maintained and used in accordance with, all Governmental
Approvals, Laws and other Governmental Requirements, and all Other
Applicable Requirements.
3. The Mortgagee shall have and is hereby granted the right to enter
and to have access at reasonable times during business hours to the
Real Estate and the Collateral (and all books and records relating to
the use, operation, construction or management thereof) without
interfering unduly with Mortgagor's business operations to determine
whether the Mortgagor is in compliance with its obligations under this
Mortgage and the other Loan Documents.
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5. Insurance.
1. Mortgagor shall obtain and maintain on the Improvements now
situated on, and the Personal Property located at, the Real Property,
or which may hereafter be erected or placed thereon, and all other
real, mixed or personal property now or hereafter encumbered by the
lien of this Mortgage physical hazard insurance on an "all risks" basis
with a Replacement Cost Endorsement, an Increased Cost of Construction
Endorsement and an Agreed Amount Endorsement, covering the perils of
fire, flood (if in a flood hazard zone), earthquakes (if in an
earthquake zone), boiler and machinery (to include major components of
HVAC systems if not already included in the above coverage) and such
other equipment as Mortgagee may require, and extended coverage in an
amount at least equal to the current fair market value of the Property
and not less than the "Full Replacement Cost" of the Improvements and
Personal Property. "Full Replacement Cost" shall mean the cost of
replacing the Improvements and Personal Property without deduction for
physical depreciation.
2. Mortgagor shall obtain and maintain commercial general liability
insurance against claims for personal injury (to include, without
limitation, bodily injury and personal and advertising injury) and
property damage liability, all on an occurrence basis, if available,
with such coverages as Mortgagee may request with a general aggregate
limit of not less than $2,000,000, an aggregate limit of not less than
$2,000,000, and a combined single "per occurrence" limit of not less
than $1,000,000 for bodily injury, property damage and medical
payments.
3. Mortgagor shall obtain and maintain rent loss or business
interruption coverage in a minimum amount of not less than eighteen
(18) months gross rentals from the Property, including without
limitation, all payments due under any lease and the salaries and
expenses of key personnel required for the operation of the Property
for a period of not less than eighteen (18) months.
4. During the course of any construction or repair of any
Improvements on the Real Property, the insurance required by clause (a)
above shall be written on a builders risk, completed value,
non-reporting form, meeting all of the terms required by clause (a)
above, covering the total value of work performed, materials,
equipment, machinery and supplies furnished, existing structures, and
temporary structures being erected on or near the Real Property,
including coverage against collapse and damage during transit or while
being stored off-site, and containing a soft costs (including loss of
rents) coverage endorsement and a permission to occupy endorsement.
5. Mortgagor shall obtain and maintain flood insurance if at any
time the Improvements are located in any federally designated "special
hazard area" (including any area having special flood, mudslide and/or
flood-related erosion hazards, and shown on a Flood Hazard Boundary Map
or a Flood Insurance Rate Map published by the Federal Emergency
Management Agency as Zone A, AO, A1-30, AE, A99, AH, V0, V1-30, VE, V,
M or E) and the broad form flood coverage required by clause (a) above
is not available, in an amount equal to the full replacement cost or
the maximum amount then available under the National Flood Insurance
Program.
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6. During the course of any construction or repair of any
Improvements on the Real Property, Mortgagor shall obtain and maintain
owner's contingent or protective liability insurance covering claims
not covered by or under the terms or provisions of the insurance
required by clause (d) above.
7. Mortgagor shall obtain and maintain employer's liability
insurance.
8. Mortgagor shall obtain and maintain umbrella liability insurance
with limits of not less than $5,000,000 to be in excess of the limits
of the insurance required by clauses (b), (f) and (g) above, with
coverage at least as broad as the primary coverages of the insurance
required by clauses (b), (f) and (g) above, with any excess liability
insurance to be at least as broad as the coverages of the lead umbrella
policy. All such policies shall be endorsed to provide defense coverage
obligations.
9. All liability coverages shall insure Mortgagee as an additional
insured, and all other forms of insurance shall insure Mortgagee as
first mortgagee. All insurance policies shall be written by a company
qualified to do business in the State of Illinois which has an A.M.
Best Company's Key Rating Guide Class A VII category designation or
higher and shall provide for not less than thirty (30) days' written
notice to Mortgagee prior to modification or cancellation. The policy
shall not contain a co-insurance clause or other clause limiting the
amount of coverage under any conditions except for standard
deductibles. Mortgagor shall notify, instruct and authorize the
companies issuing all policies to make any and all loss drafts
thereunder payable to Mortgagee. Mortgagee may on behalf of Mortgagor
adjust and compromise any claims under such insurance and collect and
receive proceeds thereof and is hereby irrevocably appointed attorney
in fact for Mortgagor coupled with an interest, for such purposes, and
may deduct from such proceeds any expense reasonably incurred by it. If
any sum of money shall become payable under such policy or policies of
insurance and is used for the purpose of rebuilding or repairing the
damaged Property, or for any other purposes, Mortgagee shall not be
deemed to have thereby waived or impaired any equity or statutory lien
or right under or by virtue of this Mortgage.
10. Mortgagor shall deliver to Mortgagee the originals, or if the
originals are not available, certified copies, of all insurance
policies required hereunder.
11. In the event of loss or physical damage to the Property,
Mortgagor shall give immediate written notice thereof to Mortgagee and
Mortgagee may make proof of loss if the same is not made promptly by
Mortgagor. All right, title, and interest of Mortgagor in and to any
insurance policies and the proceeds therefrom are assigned to Mortgagee
including unearned premiums. All proceeds deposited with Mortgagee,
may, at the option of Mortgagee, be applied in the payment of the
amount secured hereby in such order as Mortgagee may determine without
prepayment penalty or premium or be released to Mortgagor, in whole or
in part, upon conditions satisfactory to Mortgagee.
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12. Mortgagor shall deliver to Mortgagee notices of payment dates
and proof of payment of premiums on all insurance policies as well as
such certificates and proof of insurance as Mortgagee shall reasonably
request.
13. Any such insurance coverage may be maintained under blanket
insurance policies meeting all of the criteria set forth herein.
14. Unless Mortgagor provides Mortgagee with evidence of the
insurance coverage required by this Mortgage, Mortgagee may purchase
insurance at Mortgagor's expense to protect Mortgagee's interests in
the Property. This insurance may, but need not, protect Mortgagor's
interests. The coverage that Mortgagee purchases may not pay any claim
that Mortgagor may make or any claim that is made against Mortgagor in
connection with the Property. Mortgagor may later cancel any insurance
purchased by Mortgagee, but only after providing Mortgagee with
evidence that Mortgagor has obtained insurance as required by this
Mortgage. If Mortgagee purchases insurance for the Property, Mortgagor
will be responsible for the costs of that insurance, including interest
and any other charges Mortgagee may impose in connection with the
placement of the insurance, until the effective date of the
cancellation or expiration of the insurance. The costs of the insurance
may be added to Mortgagor's total outstanding balance or obligation.
The costs of the insurance may be more than the cost of insurance
Mortgagor may be able to obtain on its own.
6. Insurance Proceeds.
1. The Mortgagor agrees to give immediate notice to the Mortgagee of
any material fire, damage or other casualty to all or any part of the
Property.
2. In case of any material damage or destruction to the Property, or
any other casualty, all proceeds of any hazard insurance shall be made
payable to Mortgagee and may be applied towards any outstanding
Obligations of Mortgagor hereunder, provided however, so long as there
has been no Event of Default hereunder, Mortgagee shall release such
proceeds to Mortgagor to be applied by Mortgagor to the restoration or
replacement of the property which was the subject of such loss provided
that:
1. Mortgagor shall have demonstrated to the reasonable satisfaction
of Mortgagee that the Property will be restored to substantially
its previous condition or will be replaced by a substantially
identical property;
2. the Mortgagee shall have received, if so requested, a favorable
opinion from Mortgagor's counsel satisfactory in scope and form
to the Mortgagee, as to the Mortgagee's having a prior security
interest in and valid first lien on such restored and replaced
property; and
3. such proceeds shall be distributed by Mortgagee in the manner in
which Mortgagee customarily distributes construction loan
proceeds.
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3. Notwithstanding anything in this Paragraph 6 to the contrary, if
the insurer denies liability to the Mortgagor or if the insurance
proceeds are insufficient to complete the required repairs and
restoration, the Mortgagor shall not be relieved of any obligation
under Paragraph 4 of this Mortgage, whether or not the proceeds of
insurance are applied to or toward the indebtedness secured hereby.
7. Eminent Domain Proceeds.
1. Immediately upon obtaining knowledge of the institution of any
proceedings for the condemnation of all of any part of the Property or
the whole or any part of the buildings, structures and improvements
located on the Real Estate, Mortgagor will notify Mortgagee of the
pendency of such proceedings. Mortgagee may participate in any such
proceedings, and Mortgagor shall from time to time deliver to Mortgagee
all instruments requested by it to permit such participation. Mortgagor
shall, at its expense, diligently prosecute any such proceeding and
shall consult with the Mortgagee, its attorneys and experts and
cooperate with them in any defense of any such proceedings.
2. In case of any condemnation for public use or public injury to
the Property, all awards of damages on account of such condemnation
shall be applied, at Mortgagee's discretion, towards any outstanding
Obligations of Mortgagor hereunder, provided however, so long as there
has been no Event of Default hereunder, Mortgagee shall release such
proceeds to Mortgagor to be applied by Mortgagor to the restoration or
replacement of the property which was the subject of such condemnation
provided that:
1. Mortgagor shall have demonstrated to the reasonable satisfaction
of Mortgagee that the Property will be restored to substantially
its previous condition or will be replaced by a substantially
identical property;
2. the Mortgagee shall have received, if so requested, a favorable
opinion from Mortgagor's counsel satisfactory in scope and form
to the Mortgagee, as to the Mortgagee's having a prior security
interest in and valid first lien on such restored and replaced
Property; and
3. such proceeds shall be distributed by Mortgagee in the manner in
which Mortgagee customarily distributes construction loan
proceeds.
3. In the event eminent domain proceeds are released to the
Mortgagor for the restoration of the Property as provided above and
such proceeds are not sufficient to permit the complete restoration of
the Property, the Mortgagor shall nevertheless fully restore the
Property and shall supply any deficiency in the eminent domain proceeds
with its own funds.
8. Subordination. If this Mortgage, by its terms, is now, or at any
time, subject or subordinate to a prior mortgage, the Mortgagor shall not,
without the consent of the Mortgagee, agree to the modification, amendment or
extension of the terms or conditions of such prior mortgage. Notwithstanding the
foregoing, nothing in this paragraph 8 shall be deemed
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a waiver of Mortgagee's rights to prohibit the existence of any prior mortgages
on the Premises.
9. Delinquency of Payments; Fees and Charges. If the payment of any
installment on account of principal or interest due under Credit Agreement is
delinquent for five (5) business days or more, the Mortgagor shall pay, in
addition to any other sums due under this Mortgage (and without the Mortgagee's
other remedies on account of such delinquency) additional interest as provided
in the Credit Agreement.
Further, the Mortgagor shall pay when due all fees and charges incurred
incident to the Loans and secured by this Mortgage, the assurance of the
security represented by this Mortgage, and the enforcement of this Mortgage and
any other Obligation secured by this Mortgage.
10. Leases and Rents.
1. As part of the consideration for making the Loan, Mortgagor has
absolutely and unconditionally assigned and transferred to Mortgagee
all of Mortgagor's right, title and interest in and to the Leases and
the Revenues, including those now due, past due or to become due by
virtue of any Lease for the occupancy or use of all or any part of the
Property.
2. Mortgagor agrees that neither the foregoing assignment of Leases
and Revenues, nor the exercise of any of Mortgagee's rights and
remedies under Paragraph 19 hereof shall be deemed to make Mortgagee a
Mortgagee-in-possession or otherwise responsible or liable in any
manner with respect to the Leases, the Property or the use, occupancy,
enjoyment or operation of all or any portion thereof, unless and until
Mortgagee, in person or by agent, assumes actual possession thereof.
Nor shall the appointment of any receiver for the Property by any court
at the request of Mortgagee or by agreement with Mortgagor, or the
entering into possession of any part of the Property by such receiver,
be deemed to make Mortgagee a Mortgagee-in-possession or otherwise
responsible or liable in any manner with respect to the Leases, the
Property or the use, occupancy, enjoyment or operation of all or any
portion thereof.
3. If Mortgagee or a court-appointed receiver enters upon, takes
possession of and maintains control of the Property pursuant to
Paragraph 19 hereof, all Revenues thereafter collected shall be applied
first to the costs of taking control of and managing the Property and
collecting the Revenues, including, but not limited to, reasonable
attorneys' fees actually incurred, receiver's fees, premiums on
receiver's bonds, costs of repairs to the Property, premiums on
insurance policies, Impositions and other charges on the Property, and
the costs of discharging any obligation or liability of Mortgagor as
landlord, lessor or licensor of the Property and then to the
Obligations. Mortgagee or the receiver shall have access to the books
and records used in the operation and maintenance of the Property and
shall be liable to account only for those Revenues actually received.
Mortgagee shall not be liable to Mortgagor, anyone claiming under or
through Mortgagor or anyone having an interest in the Property by
reason of anything done or left undone by Mortgagee pursuant to
Paragraph 19 hereof. If the Revenues are not sufficient to meet the
costs of taking control of and managing the Property and collecting the
Revenues, any monies expended by Mortgagee for such
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purposes shall become a portion of the Obligations. Unless Mortgagee
and Mortgagor agree in writing to other terms of payment, such amounts
shall be payable upon notice from Mortgagee to Mortgagor requesting
payment thereof and shall bear interest from the date of disbursement
at the Default Rate (as defined in the Credit Agreement), unless
payment of interest at such rate would be contrary to applicable law,
in which event such amounts shall bear interest at the highest rate
which may be collected from Mortgagor under applicable law. The
entering upon and taking possession of and maintaining of control of
the Property by Mortgagee or the receiver pursuant to the terms of this
Mortgage and the application of Revenues as provided herein shall not
cure or waive any Event of Default or invalidate any other right or
remedy of Mortgagee hereunder.
11. Additional Security. Upon Mortgagee's request, the Mortgagor will
assign to the Mortgagee to the extent assignable, as additional security for the
Obligations, the Mortgagor's interests in all agreements, contracts, licenses
and permits, now or hereafter outstanding, affecting the Property, such
assignments to be made by instruments in form satisfactory to the Mortgagee and,
without limitation, authorizing the Mortgagee in the event of foreclosure, to
sell and assign such interest to the purchaser at foreclosure, but no such
assignment shall be construed as a consent by the Mortgagee to any lease,
agreement, contract, license or permit so assigned, or to impose upon the
Mortgagee any obligations with respect thereto. The Mortgagor hereby irrevocably
appoints the Mortgagee its true and lawful attorney-in-fact, coupled with an
interest, with full power of substitution, to execute, acknowledge and deliver
any such assignment on behalf of the Mortgagor which the Mortgagor fails or
refuses to do.
12. Status Report. From time to time, on the request of the Mortgagee,
the Mortgagor shall furnish a written statement, signed and, if requested,
acknowledged, setting forth the amount of the indebtedness which the Mortgagor
acknowledges to be due under the Loan and under this Mortgage, specifying any
claims of offset or defense which the Mortgagor asserts against the Obligations
and the then state of facts relative to the condition of the Property.
13. Waiver; Redemption. Whether or not for additional interest or other
consideration paid or payable to the Mortgagee, no forbearance on the part of
the Mortgagee or extension of the time for the payment or performance of the
whole or any part of the Obligations, whether oral or in writing, or any other
indulgence given by the Mortgagee to the Mortgagor or to any other party
claiming any interest in or to the Property, shall operate to release or in any
manner affect the original liability of the Mortgagor, or the priority of this
Mortgage or to limit, prejudice or impair any right of the Mortgagee, including,
without limitation, the right to realize upon the security, or any part thereof,
for the Obligations, notice of any such extension, forbearance or indulgence
being hereby waived by the Mortgagor, and all those claiming by, through or
under the Mortgagor; and no consent or waiver, express or implied, by the
Mortgagee to or of any default by the Mortgagor shall be construed as a consent
or waiver to or of any further default in the same or any other term, condition,
covenant or provision of this Mortgage or of the Obligations. In case redemption
is had by the Mortgagor after foreclosure proceedings have begun, the Mortgagee
shall be entitled to collect all costs, charges and expenses incurred up to the
time of redemption.
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14. Notice. Wherever notice, demand or a request may properly be given
to the Mortgagor under this Mortgage, the same shall always be sufficient to
serve as a notice, demand or request hereunder if in writing and (i) hand
delivered, (ii) delivered to a recognized private express delivery service for
overnight delivery or (iii) posted in the United States mail by registered or
certified mail, return receipt requested, addressed in any such case to the
Mortgagor at the address given in this Mortgage as the Mortgagor's address or to
the business address of the Mortgagor last known to the Mortgagee hereof. Any
such notice, demand or request shall be treated as having been given upon hand
delivery to such address or one (1) day after deposit with such delivery service
or the United States mails. A notice so addressed shall always be a sufficient
notice, notwithstanding a change in the ownership of the equity of redemption of
the Real Estate, whether or not consented to by the Mortgagee. Where more than
one person constitutes the Mortgagor, one notice sent to the address given in
this Mortgage as the Mortgagor's address or the last known business address of
any one of them shall constitute sufficient notice to all.
15. Priority of Lien.
1. Except for real estate taxes and assessments until any
delinquency therein (delinquency, with reference to such taxes and
assessments being hereby defined, for the purposes of this Mortgage, as
meaning the time when, on the non-payment thereof, interest or
penalties commence to accrue), the Mortgagor shall not create or to
permit any encumbrance on the Property even if such encumbrance is
inferior to this Mortgage. The foregoing prohibition shall include
Leases.
2. Without limiting the generality of the provisions of Subparagraph
above, the Mortgagor shall keep the Property free from any attachments,
lis pendens or mechanics', materialmen's or other liens or encumbrances
of any kind other than those approved by the Mortgagee, whether such
liens or encumbrances be prior or subordinate to this Mortgage.
Without limitation, the filing of a notice of federal or state tax lien
with the Mortgagee or at the office at which, by law, such notice is to be filed
to be effective against the Real Estate, whether or not such lien applies, in
terms, to the Real Estate shall be a breach of this Paragraph.
Without limitation, the Mortgagor shall pay and discharge all claims
for labor done and material and services furnished to or performed upon the
Property, and shall take all other steps necessary to prevent the assertion of
claims of liens against the Property or any part thereof or any right or
interest therein. Nothing herein contained shall require the Mortgagor to pay
any claims for labor, materials, or services that the Mortgagor in good faith
disputes and that the Mortgagor, at its own expense, is currently and diligently
contesting; provided, however, that the Mortgagor shall, not later than fifteen
(15) days after Mortgagor's receipt of notice, or Mortgagor's acquiring actual
knowledge, whichever occurs earlier, of the filing of any claim of lien that is
disputed or contested by Mortgagor with respect to the Property, post a bond
sufficient to dissolve or release such claim of lien, or take such other action
as may be requested or approved by the Mortgagee to dissolve or release such
claim of lien.
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16. Maintenance of Mortgagor; Transfers. The Mortgagor shall not
convey, transfer, assign, encumber, pledge or otherwise dispose of any legal,
equitable or beneficial interest in the Mortgagor or the Property or any part
thereof, or otherwise voluntarily or by operation of law transfer any legal or
equitable interest in the Real Estate or in the equity of redemption in the Real
Estate, or any part thereof. In the event any of such interests are transferred
or conveyed as aforesaid, then, at the option of the Mortgagee, the Obligations
shall become due and payable without demand or notice.
17. Bankruptcy.
1. The Mortgagor shall not file a petition or any application for
relief, extension, moratorium or reorganization under any bankruptcy,
insolvency or debtor's relief law, or make an assignment for the
benefit of creditors or enter into any trust mortgage arrangement,
so-called, or consent to the appointment of a receiver of any of the
property of the Mortgagor.
2. The Mortgagor shall not permit any petition under any
bankruptcy, insolvency or debtor's relief law filed against it to
remain undischarged for a period of more than forty-five (45) days
after the filing thereof, nor shall the Mortgagor (and any general
partner of such partnership) permit the continuation of any
receivership proceedings instituted against it for more than a period
of sixty (60) days after the commencement thereof.
18. Events of Default. The occurrence of any of the following events
shall be deemed an "Event of Default" or "Default" hereunder:
1. Default shall be made in the due and punctual payment of any
principal of or premium, if any, or interest on any of the Obligations
as and when the same shall become due and payable (whether at maturity
or at a date fixed for any prepayment or installment or by declaration
or acceleration or otherwise) and such default shall continue beyond
the expiration of the applicable period of grace, if any; or
2. Any other default shall be made in the due performance or
observance of any provision of this Mortgage, any other Loan Document
or of any other Obligation, or any Event of Default (as defined or
provided in the Credit Agreement) shall occur.
19. Remedies.
1. Upon the occurrence of an Event of Default or a Default, the
Mortgagee may (but shall not be required), at its option and without
notice, exercise any or all of the following remedies:
1. declare the entire indebtedness of the Mortgagor immediately due
and payable without notice;
2. either in person or by agent, with or without bringing any
action or proceeding, enter upon and take possession of the
Property, or any part thereof, in its own name, to operate,
manage and control the Property and conduct the business thereof
and do any acts which it deems necessary or desirable to
preserve the value, marketability or rentability of the
Property, or part thereof or interest
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therein, increase the income therefrom or protect the security
hereof. The entering upon and taking possession of the Property
shall not cure or waive any default or notice of default
hereunder;
3. take such steps to protect and enforce its rights whether by
action, suit or proceeding in equity or at law for the specific
performance of any covenant, condition or agreement in this
Mortgage, or the other Loan Documents, or in aid of the
execution of any power herein granted, or for any foreclosure
pursuant to the Illinois Mortgage Foreclosure Act 735 ILCS 5/15
(et. seq.) (the "Act") or otherwise, or for the enforcement of
any other appropriate legal or equitable remedy or otherwise as
the Mortgagee shall elect;
4. exercise any and all of the rights and remedies of a secured
party under the Uniform Commercial Code in force in the state in
which the Property is located;
5. cure the Default as provided in Paragraph 20 below; and
6. take such other actions or proceedings as the Mortgagee deems
necessary or advisable to protect its interest in the Property.
2. In addition to the foregoing remedies, after the happening of
any Event of Default and during its continuance, or upon the
commencement of any proceedings to foreclose this Mortgage or to
enforce the specific performance hereof or in aid thereof or upon the
commencement of any other judicial proceeding to enforce any right of
the Mortgagee, the Mortgagee shall be entitled, as a matter of right,
if it shall so elect, without the giving of notice to any other party
and without regard to the adequacy or inadequacy of any security for
the Obligations, forthwith either before or after declaring the unpaid
principal of the Loans to be due and payable, to the appointment of a
receiver or receivers of the Property or any part thereof and of all
the earnings, revenues, rents, issues, profits and income thereof.
Notwithstanding the appointment of any receiver, liquidator or trustee
of the Mortgagor, or of any of its property, or of the Property or any
part thereof, the Mortgagee shall be entitled to retain possession and
control of all property now or hereafter held under this Mortgage.
3. The Mortgagee may, at the Mortgagee's option, foreclose this
Mortgage for any portion of the debt or any other sums secured hereby
which are then due and payable, subject to the continuing lien of this
Mortgage for the balance of the secured debt not then due.
4. Such remedies shall continue until all such Events of Default
have been cured by Mortgagor and all foreclosure or other proceedings
which shall have been commenced are completed, and such remedies may be
exercised individually, sequentially or in concert. All of the rights
and remedies of the Mortgagee set forth in this Mortgage and the other
Loan Documents are cumulative and not exclusive of one another and may
be exercised in any order, and the exercise of one shall not be
construed to be a waiver of any of the others. Such remedies are also
cumulative and not exclusive of any and all other remedies now or
hereafter available to the Mortgagee under any law or in equity or
otherwise. The resort to any remedy provided for
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hereunder or under any other instrument given in connection with the
financing arrangement secured hereby or provided for by law shall not
prevent the concurrent or subsequent employment of any other
appropriate remedy or remedies. No delay or omission to exercise any
right or power shall impair such right or power or constitute a waiver
of any Default or Event of Default or acquiescence therein; and each
such right and power may be exercised as often as deemed expedient.
20. Mortgagee's Right to Cure Default. If there shall be any breach in
any condition or covenant of this Mortgage, the Mortgagee shall have the right,
but without any obligation so to do, to cure such default for the account of the
Mortgagor and, to the fullest extent permissible according to law, apply any
funds credited by or due from the Mortgagee to the Mortgagor against the same
(without any obligation first to enforce any other rights of the Mortgagee,
including, without limitation, any rights under the Credit Agreement or this
Mortgage, or any guaranty thereof, and without prejudice to any such rights).
Without limiting the generality of the foregoing, the Mortgagor hereby
authorizes the Mortgagee to pay all taxes, sewer use fees, water rates and
assessments, with interest, costs and charges accrued thereon, which may at any
time be a lien upon the Property, or any part thereof; to pay the premiums for
any insurance required hereunder; or to incur and pay reasonable expenses in
protecting its rights hereunder and the security hereby granted; to pay any
balance due under any security agreement on any articles, fixtures and equipment
included as a part of the Property; and the payment of all amounts so expended
or incurred shall be considered advances under the Credit Agreement and shall be
secured hereby as fully and effectively as any other obligation of the Mortgagor
secured hereby; and, to the fullest extent permissible according to law, to
apply to any of these purposes or to the repayment of any amounts so paid by the
Mortgagee any sums paid on the Loan by the Mortgagor as interest or otherwise.
21. Foreclosure Sale.
1. At any foreclosure sale, any combination, or all, of the
Property or other security given to secure the Obligations, may be
offered for sale for one total price, and the proceeds of such sale
accounted for in one account without distinction between the items of
security or without assigning to them any proportion of such proceeds,
the Mortgagor hereby waiving the application of any doctrine of
marshalling and inverse order of alienation; and, in case the
Mortgagee, in the exercise of the remedies of foreclosure herein given,
elects to sell in parts or parcels, said sales may be held from time to
time, and the power shall not be fully executed until all of the
Property or other security not previously sold shall have been sold.
Without limiting the foregoing, at any one or more sales the Mortgagee
may in its sole discretion elect which portion or all, and in which
order, the Property or other security given to secure the Obligations
shall be offered for sale.
2. If the provisions of the Uniform Commercial Code as in force in
the state in which the Property is located (the "Uniform Commercial
Code") are applicable to any part of the Property which is sold in
combination with or as a part of the Real Estate, or any part thereof,
at one or more foreclosure sales, any notice required under such
provisions shall be fully satisfied by the notice given in execution
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of the remedies set forth herein with respect to the Real Estate or any
part thereof.
3. Mortgagor acknowledges that the transaction of which this
Mortgage is a part is a transaction which does not include either
agricultural real estate (as defined in Section 15.1201 of the Act) or
residential real estate (as defined in Section 15-1219 of the Act) and,
to the fullest extent permitted by law, hereby voluntarily and
knowingly waives its rights to reinstatement and redemption as allowed
under Section 15-1601 (b) of the Act and, to the fullest extent
permitted by law, the benefits of all present and future valuation,
appraisement, homestead, exemption, stay, redemption and moratorium
laws under any state or federal law.
4. In the event that any provision in this Mortgage shall be
inconsistent with any provision of the Act, the provisions of the Act
shall take precedence over the provisions of this Mortgage, but shall
not invalidate or render unenforceable any other provision of this
Mortgage that can be construed in a manner consistent with the Act.
Furthermore, if any provision of this Mortgage shall grant to Mortgagee
any rights or remedies upon an Event of Default by default of Land
Trust, Beneficiary, or any Guarantor which are more limited than the
rights that would otherwise be vested in Mortgagee under the Act in the
absence of said provision, Mortgagee shall be vested with the rights
granted in the Act to the full extent permitted by law.
22. Warranty of Title. The Mortgagor warrants that it is the sole owner
and holder of the Property and has good right, full power and lawful authority
to mortgage, assign and transfer the Property in the manner contemplated hereby.
23. Indemnification/Subrogation.
1. The Mortgagor will indemnify and hold harmless the Mortgagee
from and against any and all claims, demands, losses, judgments and
liabilities (including liabilities for penalties) of whatever kind or
nature, and will reimburse the Mortgagee for all costs and expenses,
including attorneys' fees, growing out of or resulting from the
exercise by the Mortgagee of any right or remedy granted to it under
this Mortgage. In no event shall the Mortgagee be liable for any manner
or thing in connection with this Mortgage other than to account for
monies actually received by and in accordance with the terms hereof.
2. Should the proceeds of the Loan or any amount paid or advanced
hereunder by Mortgagee, be used directly or indirectly to pay off,
discharge or satisfy, in whole or in part, any lien or encumbrance upon
the Property on a parity with or superior to the lien hereof, then as
additional security hereunder, the Mortgagee shall be subrogated to any
and all rights, equal or superior titles, liens and equities owned or
claimed by any owner or holder of said outstanding liens, charges and
indebtedness, regardless of whether said liens, charges and
indebtedness are acquired by assignment or have been released of record
by the holder thereof upon payment.
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24. Hazardous Substances.
1. Warranties and Indemnification. Mortgagor shall comply with all
the terms and provisions of that certain Environmental Indemnity
Agreement, by Mortgagor in favor of Mortgagee dated on or about the
date hereof (the "ENVIRONMENTAL INDEMNITY").
2. Survival, Assignability, and Transferability.
1. The warranties and representations set forth in this Paragraph
24 and the Environmental Indemnity shall survive the payment and
performance of the Obligations and any exercise by Mortgagee of
any remedies under this Mortgage, including without limitation,
the power of sale, or any other remedy in the nature of
foreclosure, and shall not merge with any deed given by
Mortgagor to Mortgagee in lieu of foreclosure or any deed under
a power of sale.
2. It is agreed and intended by Mortgagor and Mortgagee that the
warranties and representations set forth above in this Paragraph
24 and the Environmental Indemnity may be assigned or otherwise
transferred by Mortgagee to its successors and assigns and to
any subsequent purchasers of all or any portion of the Property
by, through or under Mortgagee, without notice to Mortgagor and
without any further consent of Mortgagor. To the extent consent
to any such assignment or transfer is required by law, advance
consent to any such assignment or transfer is hereby given by
Mortgagor in order to maximize the extent and effect of such
warranties, representations and indemnification.
25. Other Agreements. As set out above, this Mortgage is also given as
security for the performance of all covenants and agreements contained in the
Loan Documents, including without limitation the Credit Agreement. The Mortgagor
agrees that the Credit Agreement (and all other Loan Documents) are incorporated
herein by reference and made a part hereof. The Mortgagor agrees faithfully to
perform and observe all of its obligations under the terms of the Credit
Agreement and the Loan Documents. It is agreed that the agreements contained in
this Mortgage and the agreements contained in the other Loan Documents are
intended to be supplemental obligations; however, where irreconcilable conflict
exists, the provisions of the Credit Agreement shall govern.
26. Reserve Requirements. If any law or regulation (including without
limitation Regulations D or K of the Board of Governors of the Federal Reserve
System), whether presently in force or hereafter enacted or promulgated, or any
interpretation thereof by any Governmental Authority shall:
1. modify or deem applicable any reserve, special deposit or
similar requirement against any asset held by, or deposits with or for
the account of, or loans by, or any other commitment or acquisition of
funds, for advances by, the Mortgagee; or
2. impose on the Mortgagee any other condition regarding this
Mortgage or any of the other Loan Documents;
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and if the result of any of the foregoing is to increase the cost to the
Mortgagee of making or maintaining the Loan secured hereby over the cost that
would have been applicable had there been no such law, regulation or
interpretation in effect, then, upon demand, the Mortgagor shall pay to the
Mortgagee such additional amount (as shall be determined in the sole discretion
of the Mortgagee) as shall compensate for such increased cost.
27. Amendments. If the payment of the indebtedness secured by this
Mortgage or any part thereof is extended or varied or if any part of the
security therefore is released, all persons now or at any time hereafter liable
therefor, or interested in the Real Estate, shall be held to assent to such
extension, variation or release, and their liability and the lien and all
provisions hereof shall continue in full force, the right of recourse, if any,
against all such persons being expressly reserved by the Mortgagee,
notwithstanding such extension, variation or release. Any person or entity
taking a junior mortgage or other lien upon the Property or any interest
therein, shall take said lien subject to the rights of Mortgagee herein to
amend, modify, and supplement this Mortgage and the other Loan Documents and to
vary the rate of interest and the method of computing the same, and to impose
additional fees and other charges, and to extend the maturity of said
indebtedness, and to grant partial releases of the lien of this Mortgage, in
each and every case without obtaining the consent of the holder of such junior
lien and without the lien of this Mortgage losing its priority over the rights
of any such junior lien. Nothing contained in this section, however, shall be
construed as waiving any provision contained herein which provides, among other
things, that it shall constitute an Event of Default if the Property is sold,
conveyed, or encumbered.
28. Miscellaneous.
1. If at any time any law or court decree prohibits the performance
of any obligation undertaken herein by the Mortgagor, or provides that
any amount to be paid hereunder by the Mortgagor must be credited
against the Mortgagor's obligations under the Credit Agreement, the
Mortgagee shall have the right, on thirty (30) days' prior notice to
the Mortgagor, to require payment in full of the entire indebtedness
secured hereby.
2. Any provision contained in this Mortgage, the Credit Agreement
or elsewhere notwithstanding, the Mortgagee shall not be entitled to
receive or collect, nor shall the Mortgagor be obligated to pay,
interest on any of the monies secured hereby in excess of the maximum
rate of interest permitted by the laws of the state applicable thereto,
and if any such provision shall ever be construed or held to permit the
collection or to require the payment of any amount of interest in
excess of that permitted by the laws of the state applicable thereto,
the provisions of this paragraph shall control and shall override any
contrary or inconsistent provision in this Mortgage, the Credit
Agreement or elsewhere. The intention of the parties is to conform
strictly to the usury laws now in force and every instrument relating
to payment of any of the monies secured hereby shall be held subject to
reduction to the amount allowed under said usury laws as now or
hereafter construed by the courts having jurisdiction.
3. Mortgagor acknowledges and agrees that (a) the proceeds of the
Loan will be used in conformance with subparagraph (1)(1) of Section 4
of the Interest Act (815 ILCS 205/0.01 et seq.), (b) the
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obligations secured hereby constitute a business loan which comes
within the purview of said Section 4, and (c) the loan evidenced by the
Note is an exempted transaction under the Truth-in-Lending Act, 15
U.S.C. Sec. 1601 et seq.
4. All of the Mortgagee's rights and remedies set forth in this
Mortgage and the Loan Documents are cumulative and not exclusive of one
another and may be exercised in any order, and the exercise of one
shall not be construed to be a waiver of any of the others. Such
remedies are also cumulative and not exclusive of any and all other
remedies available to the Mortgagee. The resort to any remedy provided
for hereunder or under any other instrument given in connection with
the construction loan financing secured hereby or provided for by law
shall not prevent the concurrent or subsequent employment of any other
appropriate remedy or remedies.
5. If the Mortgagee shall have proceeded to invoke any right,
remedy or recourse permitted under this Mortgage or any other
obligation of the Mortgagor, and shall thereafter elect to discontinue
or abandon the same for any reason, the Mortgagee shall have the
unqualified right to do so and in such event the Mortgagor and the
Mortgagee shall be restored to their former positions with respect to
the Obligations. In such case this Mortgage, all other obligations, and
all rights, remedies and recourse of the Mortgagee shall continue as if
the same had not been invoked.
6. No waiver at any time of any of the provisions or conditions of
this Mortgage or of any other obligation of the Mortgagor shall be
construed as a waiver of any other of the conditions or provisions of
this Mortgage or of any of such obligations, nor shall such waiver in
any instance be construed as a waiver of the same provision or
condition in other or subsequent instances. A consent or approval given
by the Mortgagee in one instance shall not render such consent or
approval unnecessary in future instances.
7. This Mortgage may not be waived, changed or discharged orally,
but only by an agreement in writing and signed by the party against
whom enforcement of any waiver, change or discharge is sought and any
oral waiver, change or discharge of any provision of this Mortgage by a
representative of any party shall be without authority and of no force
and effect.
8. If any term or provision of this Mortgage or the application
thereof to any person or circumstances shall, to any extent, be invalid
or unenforceable, the remainder of this Mortgage or the application of
such term or provision to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Mortgage shall be valid
and shall be enforced to the fullest extent permitted by law.
9. Paragraph headings in this Mortgage are for convenience and
reference only and the words and phrases contained therein shall in no
way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of any of the provisions herein.
10. The Loans secured by this Mortgage were negotiated in the
Commonwealth of Massachusetts and the laws of the Commonwealth of
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Massachusetts shall govern the construction, interpretation, validity
and legal effect of this Mortgage and the rights and duties of the
parties hereunder, except the laws of the state in which the Property
is located shall govern the procedures for enforcing the rights and
remedies of the Mortgagee hereunder.
11. The word "Mortgagor", as used herein, shall mean the person or
persons named at the beginning of this instrument as the Mortgagor, any
subsequent owner or owners of the equity of redemption of the Real
Estate, and any guarantor, jointly and/or severally, of the obligations
of the Mortgagor hereunder or under the Credit Agreement or other Loan
Documents. Where more than one person constitutes the entities
constituting the Mortgagor, provisions in this Mortgage with reference
to bankruptcy or insolvency or the like shall refer to each of the
persons who is at that time one of the Mortgagor, so that if, for
example, but without limitation, any person who is one of the Mortgagor
(or is a partner, trustee or joint venturer in an entity which is one
of the entities constituting the Mortgagor) shall file a petition in
bankruptcy, such filing shall be treated as a breach of condition of
this Mortgage.
12. The word "Mortgagee", as used herein, shall mean the Mortgagee
named at the beginning of this instrument, its successors and assigns,
and any subsequent holder or holders of this Mortgage. Notwithstanding
any other provisions of this Agreement, the rights of the parties
hereunder are subject to the provisions of the Credit Agreement
including the provisions thereof pertaining to the rights and
responsibilities of the Mortgagee as trustee thereunder.
13. All of the rights of the Mortgagee hereunder shall inure to the
benefit of its successors and assigns, and all the covenants and
agreements of the Mortgagor herein contained shall be binding upon the
Mortgagor and its permitted successors and assigns; and, where more
than one person or entity constitutes the Mortgagor the liability of
such persons or entities under this Mortgage for the obligations set
forth herein shall be joint and several.
[SIGNATURES ON FOLLOWING PAGE]
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Executed as a sealed instrument as of the date first above written.
MORTGAGOR:
ENESCO GROUP, INC.
By: /s/ Jeffrey W. Lemajeur
---------------------------------
Name: Jeffrey W. Lemajeur
Title: Chief Financial Officer
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