EXHIBIT 10.19
THIS INSTRUMENT PREPARED BY AND
AFTER RECORDING MAIL TO:
Vedder, Price, Kaufman & Kammholz, P.C.
Attn: Matthew T. O'Connor, Esq.
222 North LaSalle Street
Chicago, Illinois 60601
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT (hereinafter referred to as the
"Mortgage") made as of this 17th day of November, 2003, by SIGMATRON
INTERNATIONAL, INC., a Delaware corporation, having its principal office at 2201
Landmeier Road, Elk Grove Village, Illinois 60007 (the "Mortgagor') to LASALLE
BANK NATIONAL ASSOCIATION, a national banking association (herein, together with
its successors and assigns, including each and every holder of the Note,
hereinafter called the "Mortgagee"), whose address is 135 South LaSalle Street,
Chicago, Illinois 60603, Attention: Sara Huizinga.
WHEREAS, Mortgagor is the owner of the fee simple estate in the Real
Estate (as hereinafter defined);
WHEREAS, the Mortgagor has, concurrently herewith, executed and
delivered to the Mortgagee, a Mortgage Note of even date herewith, payable to
the order of Mortgagee, in the principal sum of Three Million Six Hundred
Thousand and 00/100 ($3,600,000.00) Dollars (herein called the "Note") bearing
interest at the rate specified therein, due in the manner as provided therein
and in any event on the 30th day of November, 2008, the terms and provisions of
which Note are incorporated herein and made a part hereof by this reference with
the same effect as if set forth at length;
WHEREAS, the indebtedness evidenced by the Note, including the
principal thereof and interest and premium, if any, thereon, and any extensions,
refinancings, amendments, renewals, and modifications thereof, in whole or in
part, and any and all other sums which may be at any time due or owing or
required to be paid by Mortgagor as herein or in the Note, is herein
collectively called the "Indebtedness Hereby Secured"; and
WHEREAS, as a condition precedent for Mortgagee extending any financial
accommodation to Mortgagor pursuant to the Note or otherwise, Mortgagee has
requested that Mortgagor execute and deliver this Mortgage to Mortgagee and that
all loans under the Note shall be in reliance upon this Mortgage.
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EXHIBIT 10.19
NOW, THEREFORE, THIS MORTGAGE WITNESSETH:
That to secure the payment of the principal of and interest and
premium, if any, on the Note according to its tenor and effect and to secure the
payment of all other Indebtedness Hereby Secured and the performance and
observance of all the covenants, provisions and agreements herein and in the
Note (whether or not the Mortgagor is personally liable for such payment,
performance and observance) and in consideration of the premises, and for other
good and valuable considerations, the receipt and sufficiency of all of which is
hereby acknowledged by the Mortgagor, the Mortgagor does hereby GIVE, GRANT,
BARGAIN, SELL, WARRANT, RELEASE, REMISE, ALIENATE, ASSIGN, GRANT A SECURITY
INTEREST IN, TRANSFER, HYPOTHECATE, DEPOSIT, PLEDGE, SET OVER, MORTGAGE and
CONVEY unto the Mortgagee all and sundry rights, interests and property
hereinafter described (all herein together called the "Premises"):
(a) All of the real estate (herein called the "Real Estate")
legally described in EXHIBIT "A" attached hereto and made a
part hereof,
(b) All buildings and other improvements now or at any time
hereafter constructed or erected upon or located at the Real
Estate, together with and including, but not limited to, all
fixtures, equipment, machinery, appliances and other articles
and attachments now or hereafter forming part of or
incorporated in any such building or improvements (all herein
generally called the "Improvements");
(c) All privileges, reservations, allowances, hereditaments,
tenements and appurtenances now or hereafter belonging or
pertaining to the Real Estate or Improvements;
(d) All leasehold estates, right, title and interest of Mortgagor
in any and all leases, subleases, arrangements or agreements
relating to the use and occupancy of the Real Estate and
Improvements or any portion thereof, now or hereafter existing
or entered into (all herein generally called "Leases"),
together with all cash or security deposits, advance rentals
and other deposits or payments of similar nature given in
connection with any Leases;
(e) All rents, issues, profits, royalties, income, avails, and
other benefits now or hereafter derived from the Real Estate
and Improvements, under Leases or otherwise (all herein
generally called "Rents"), subject to the right, power and
authority given to the Mortgagor in the Assignment hereinafter
referred to, to collect and apply the Rents;
(f) All right, title and interest of Mortgagor in and to all
options to purchase or lease the Real Estate or Improvements
or any portion thereof or interest therein, or any other
rights, interests or greater estates in the rights and
properties comprising the Premises, now owned or hereafter
acquired by Mortgagor;
(g) Any interests, estates or other claims, both in law and in
equity, which Mortgagor now has or may hereafter acquire in
the Real Estate and Improvements or other
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EXHIBIT 10.19
rights, interests or properties comprising the Premises now
owned or hereafter acquired;
(h) All right, title and interest of Mortgagor now owned or
hereafter acquired in and to (i) any land or vaults lying
within the right-of-way of any street or alley, open or
proposed, adjoining the Real Estate; (ii) any and all alleys,
sidewalks, strips and gores of land adjacent to or used in
connection with the Real Estate and Improvements; (iii) any
and all rights and interests of every name or nature forming
part of or used in connection with the Real Estate and/or the
operation and maintenance of the Improvements; (iv) all
easements, rights-of-way and rights used in connection with
the Real Estate or Improvements or as a means of access
thereto; and (v) all water rights and shares of stock
evidencing the same;
(i) All right, title and interest of Mortgagor in and to all
tangible personal property (herein called "Personal
Property"), owned by Mortgagor and now or at any time
hereafter located in, on or at the Real Estate or now or
hereafter forming part of, attached to or incorporated in or
intended to be utilized for any Improvements, enumerated as
follows:
(i) all building materials and equipment located upon the
Real Estate and intended to be incorporated in the
Improvements now or hereafter to be constructed
thereon, whether or not yet incorporated in such
Improvements;
(ii) all machines, machinery, fixtures, apparatus,
equipment or articles used in supplying heating, gas,
electricity, air-conditioning, water, light, power,
sprinkler protection, waste removal, refrigeration
and ventilation, and all fire sprinklers, alarm
systems, electronic monitoring equipment and devices;
(iii) all window or structural cleaning rigs, maintenance
equipment relating to exclusion of vermin or insects
and removal of dust, refuse or garbage;
(iv) all tacked down rugs, carpets and other floor
coverings, drapery rods and brackets, awnings, window
shades, venetian blinds and curtains; and
(v) all lighting fixtures;
provided that there shall be excluded from and not included within the term
"Personal Property" as used herein and hereby mortgaged and conveyed, any
equipment, trade fixtures, furniture, furnishings or other property of tenants
under any Leases of the Premises;
(j) All the estate, interest, right, title or other claim or
demand which Mortgagor now has or may hereafter have or
acquire with respect to (i) the proceeds of insurance in
effect with respect to the Premises and (ii) any and all
awards, claims for damages and other compensation made for or
consequent upon the taking by condemnation, eminent domain or
any like proceeding, or by any proceeding, or purchase in lieu
thereof, of the whole or any part of the Premises, including,
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EXHIBIT 10.19
without limitation, any awards and compensation resulting from
a change of grade of streets and awards and compensation for
severance damages (all herein generally called "Awards").
TO HAVE AND TO HOLD all and sundry the Premises hereby mortgaged and
conveyed or intended so to be, together with the rents, issues and profits
thereof, unto the Mortgagee forever, free from all rights and benefits under and
by virtue of the Homestead Exemption Laws of the State of Illinois (which rights
and benefits are hereby expressly released and waived), for the uses and
purposes herein set forth, together with all right to retain possession of the
Premises after any default in the payment of all or any part of the Indebtedness
Hereby Secured, or the breach of any covenant or agreement herein contained, or
upon the occurrence of any Event of Default, as hereinafter defined;
FOR THE PURPOSE OF SECURING:
(a) Payment of the indebtedness with interest thereon evidenced by
the Note and any and all modifications, refinancings,
extensions and renewals thereof, and all other Indebtedness
Hereby Secured;
(b) Performance and observance by Mortgagor of all of the terms,
provisions, covenants and agreements on Mortgagor's part to be
performed and observed under the Assignment referred to in
Section 25 hereof,
(c) Performance and observance by Mortgagor of all of the terms,
provisions, covenants and agreements on Mortgagor's part to be
performed or observed under the Loan Documents (as defined in
the Note) of even date herewith, entered into by and between
Mortgagee and Mortgagor; and
(d) Performance by any guarantor of its obligations under any
guaranty or other instrument given to further secure the
payment of the Indebtedness Hereby Secured or the performance
of any obligation secured hereby.
PROVIDED, NEVERTHELESS, and these presents are upon the express
condition that if all of the Indebtedness Hereby Secured shall be duly and
punctually paid and all the terms, provisions, conditions and agreements herein
contained on the part of the Mortgagor to be performed or observed shall be
strictly performed and observed, then Mortgagee shall release this Mortgage at
the expense of Mortgagor.
AND IT IS FURTHER AGREED THAT:
1. PAYMENT OF INDEBTEDNESS. The Mortgagor will duly and promptly pay each and
every installment of the principal of and interest and premium, if any, on the
Note, and all other Indebtedness Hereby Secured that Mortgagor may or may become
obligated to pay under the Note or otherwise, as the same become due, and will
duly perform and observe all of the covenants, agreements and provisions herein
or in the Note provided on the part of the Mortgagor to be performed and
observed.
2. MAINTENANCE, REPAIR, RESTORATION, PRIOR LIENS, PARKING. The Mortgagor will:
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EXHIBIT 10.19
(a) promptly repair, restore or rebuild any Improvements now or
hereafter on the Premises which may become damaged or be
destroyed whether or not proceeds of insurance are available
or sufficient for the purpose;
(b) keep the Premises in good condition and repair, without waste,
and free from mechanics' liens, materialmen's or like liens or
claims or other liens or claims for lien not expressly
subordinated to the lien hereof;
(c) pay, when due, any indebtedness which may be secured by a lien
or charge on the Premises on a parity with or superior to the
lien hereof, and upon request exhibit satisfactory evidence of
the discharge of such lien to the Mortgagee;
(d) complete, within a reasonable time, any Improvements now or at
any time in the process of erection upon the Premises;
(e) comply with all requirements of law, municipal ordinances or
restrictions and covenants of record with respect to the
Premises and the use thereof;
(f) make no material alterations in the Premises, except as
required by law or municipal ordinance;
(g) suffer or permit no change in the general nature of the
occupancy of the Premises without the Mortgagee's prior
written consent, which shall not be unreasonably withheld;
(h) pay when due all operating costs of the Premises;
(i) initiate or acquiesce in no zoning reclassification with
respect to the Premises, without the Mortgagee's prior written
consent, which shall not be unreasonably withheld; and
(j) provide, improve, grade, surface and thereafter maintain,
clean, repair, police and adequately light parking areas
within the Premises as may be required by law, ordinance or
regulation, together with any sidewalks, aisles, streets,
driveways and sidewalk cuts and sufficient paved areas for
ingress, egress and right-of-way to and from the adjacent
public thoroughfares necessary or desirable for the use
thereof.
3. TAXES. The Mortgagor will pay when due and before any penalty attaches, all
general and special taxes, assessments, water charges, sewer charges, and other
fees, taxes, charges and assessments of every kind and nature whatsoever (all
herein generally called "Taxes"), whether or not assessed against the Mortgagor,
if applicable to the Premises or any interest therein, or the Indebtedness
Hereby Secured, or any obligation or agreement secured hereby; and Mortgagor
will, upon written request, furnish to the Mortgagee duplicate receipts
therefor; provided that the Mortgagor may contest the amount or propriety of any
Taxes in accordance with the provisions of Section 29 hereof, provided that (a)
in the event that any law or court decree has the effect of deducting from the
value of land for the purposes of taxation any lien thereon, or imposing upon
the Mortgagee the payment in whole or any part of the Taxes or liens herein
required to be paid
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EXHIBIT 10.19
by Mortgagor, or changing in any way the laws relating to the taxation of
mortgages or debts secured by mortgages or in the interest of the Mortgagee in
the Premises or the manner of collection of Taxes, so as to affect this Mortgage
or the Indebtedness Hereby Secured or the holder thereof, then, and in any such
event, the Mortgagor upon demand by the Mortgagee, will pay such Taxes, or
reimburse the Mortgagee therefor and (b) nothing in this Section 3 contained
shall require the Mortgagor to pay any income, franchise or excise tax imposed
upon the Mortgagee, excepting only such which may be levied against such income
expressly as and for a specific substitute for Taxes on the Premises, and then
only in an amount computed as if the Mortgagee derived no income from any source
other than its interest hereunder.
4. INSURANCE COVERAGE. The Mortgagor will insure and keep insured the Premises
and each and every part and parcel thereof against such perils and hazards as
the Mortgagee may from time to time require, and in any event including:
(a) Insurance against loss to the improvements caused by fire,
lightning and risks covered by the so-called "all perils"
endorsement and such other risks as the Mortgagee may
reasonably require, in amounts (but in no event less than the
initial stated principal amount of the Note) equal to the full
replacement value of the improvements, plus the cost of debris
removal, with full replacement cost endorsement;
(b) Comprehensive general public liability insurance against
bodily injury and property damage in any way arising in
connection with the Premises with such limits as the Mortgagee
may reasonably require and in any event not less than
$2,000,000.00 single limit coverage;
(c) During the making of any alterations or improvements to the
Premises (i) insurance covering claims based on the owner's
contingent liability not covered by the insurance provided in
Subsection (b) above; (ii) Workmen's Compensation insurance
covering all persons engaged in making such alterations or
improvements; and (iii) builder's risk insurance complete
form;
(d) Federal Flood Insurance in the maximum obtainable amount up to
the amount of the Indebtedness Hereby Secured evidenced by the
Note, if the Premises is in a "flood plain area" as defined by
the Federal Insurance Administration pursuant to the Federal
Flood Disaster Protection Act of 1973, as amended;
(e) Rental value insurance (or, at the discretion of the
Mortgagee, business interruption insurance) in amounts
sufficient to pay during any period of up to one (1) year in
which the Improvements may be damaged or destroyed (i) all
rents derived from the Premises and (ii) all amounts
(including, but not limited to, all taxes, assessments,
utility charges and insurance premiums) required herein to be
paid by the Mortgagor or by tenants of the Premises; and
(f) If any part of the Premises is now or hereafter used for the
sale or dispensing of beer, wine, spirits or any other
alcoholic beverages, so-called "Dram Shop" or "Innkeeper's
Liability" insurance against claims or liability arising
directly or
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EXHIBIT 10.19
indirectly to persons or property on account of such sale or
dispensing of beer, wine, spirits or other alcoholic
beverages, including in such coverage loss of means of
support, all in amounts as may be required by law or as the
Mortgagee may specify, but in no event less than $2,000,000.00
single limit coverage.
5. INSURANCE POLICIES. All policies of insurance to be maintained and provided
as required by Section 4 hereof shall:
(a) be in forms, companies having the best available and
commercially reasonable rating, as reasonably approved by
Mortgagee (but which shall not be required to be a higher
rating than currently held by Mortgagor's insurers) and are
licensed to transact business in the State of Illinois and
amounts reasonably satisfactory to Mortgagee, and all policies
of casualty insurance shall have attached thereto mortgagee
clauses or endorsements in favor of and with loss payable to
Mortgagee;
(b) contain endorsements that no act or negligence of the insured
or any occupant and no occupancy or use of the Premises for
purposes more hazardous than permitted by the terms of the
policies will affect the validity or enforceability of such
policies as against Mortgagee;
(c) be written in amounts sufficient to prevent Mortgagor from
becoming a coinsurer; and
(d) provide for thirty (30) days prior written notice of
cancellation or material modification to Mortgagee.
Mortgagor will deliver binding certificates of insurance evidencing all
policies and renewal policies to Mortgagee, and in case of insurance policies
about to expire, the Mortgagor will deliver renewal certificates not less than
thirty (30) days prior to the respective dates of expiration. Upon Mortgagee's
written request, Mortgagor will deliver all policies, including additional and
renewal policies, to Mortgagee.
6. DEPOSITS FOR TAXES. In order to assure the payment of Taxes payable with
respect to the Premises as and when the same shall become due and payable:
(a) The Mortgagor shall deposit with the Mortgagee on the first
day of each and every month, commencing with the date the
first payment of interest and/or principal and interest shall
become due on the Indebtedness Hereby Secured, an amount equal
to One-Twelfth (1/12) of the Taxes next to become due upon the
Premises; provided that, in the case of the first such
deposit, there shall be deposited in addition an amount as
estimated by Mortgagee which, when added to monthly deposits
to be made thereafter as provided for herein, shall assure to
Mortgagee's satisfaction that there will be sufficient funds
on deposit to pay Taxes as they come due;
provided that the amount of such deposits (herein generally called "Tax
Deposits") shall be based upon Mortgagee's reasonable estimate as to
the amount of Taxes next to be
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EXHIBIT 10.19
payable; and all Tax Deposits shall be held by the Mortgagee without
any allowance of interest thereon.
(b) The aggregate of the monthly Tax Deposits, together with
monthly payments of interest and/or principal and interest
payable on the Note shall be paid in a single payment each
month, to be applied to the following items in the order
stated:
(i) Taxes;
(ii) Late Charges (as defined in the Note) and costs
advanced by Mortgagee;
(iii) Indebtedness Hereby Secured other than principal and
interest on the Note;
(iv) Interest on the Note; and
(v) The principal of the Note.
(c) The Mortgagee will, out of the Tax Deposits, upon the
presentation to the Mortgagee by the Mortgagor of the bills
therefor, pay the Taxes or will, upon presentation of
receipted bills therefor, reimburse the Mortgagor for such
payments made by the Mortgagor. If the total Tax Deposits on
hand shall not be sufficient to pay all of the Taxes when the
same shall become due, then the Mortgagor shall pay to the
Mortgagee on demand any amount necessary to make up the
deficiency. If the total of such Deposits exceed the amount
required to pay the Taxes, such excess shall be credited on
subsequent payments to be made for such items.
(d) In the event of a default in any of the provisions contained
in this Mortgage or in the Note, the Mortgagee may, at its
option, without being required so to do, apply any Tax
Deposits on hand on any of the Indebtedness Hereby Secured, in
such order and manner as the Mortgagee may elect. When the
Indebtedness Hereby Secured has been fully paid, then any
remaining Tax Deposits shall be paid to the Mortgagor. All Tax
Deposits are hereby pledged as additional security for the
Indebtedness Hereby Secured, and shall be held in trust to be
irrevocably applied for the purposes for which made as herein
provided, and shall not be subject to the direction or control
of the Mortgagor.
(e) Notwithstanding anything to the contrary herein contained, the
Mortgagee shall not be liable for any failure to apply to the
payment of Taxes any amounts deposited as Tax Deposits unless
the Mortgagor, while no default exists hereunder and within a
reasonable time prior to the due date, shall have requested
the Mortgagee in writing to make application of such Deposits
on hand to the payment of the particular Taxes for the payment
of which such Deposits were made, accompanied by the bills
therefor.
Notwithstanding the foregoing provisions of this Section 6, Mortgagor shall not
be required to make the tax deposits required hereby provided that (i) Mortgagor
delivers to Mortgagee no less
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EXHIBIT 10.19
than 15 days prior to its due date, evidence of payment in full of all general
and special taxes assessed against the Premises; and (ii) no Event of Default
under the Note or any of the terms and provisions of this Mortgage and the Loan
Documents shall be existing
7. PROCEEDS OF INSURANCE. The Mortgagor will give the Mortgagee prompt notice of
any damage to or destruction of the Premises, and,
(a) In case of loss covered by policies of insurance, the
Mortgagee (or, after entry of decree of foreclosure, the
purchaser at the foreclosure sale or decree creditor, as the
case may be) is hereby authorized at its option either (i) to
settle and adjust any claim under such policies without the
consent of the Mortgagor, or (ii) allow the Mortgagor to agree
with the insurance company or companies on the amount to be
paid upon the loss; provided that the Mortgagor may itself
adjust losses aggregating not in excess of One Hundred
Thousand Dollars ($100,000.00), and provided further that in
any case the Mortgagee shall, and is hereby authorized to,
collect and receipt for any such insurance proceeds; and the
expenses incurred by the Mortgagee in the adjustment and
collection of insurance proceeds shall be so much additional
Indebtedness Hereby Secured, and shall be reimbursed to the
Mortgagee upon demand;
(b) In the event of any destruction of the Premises or any part
thereof (herein called an "Insured Casualty") and if, in the
reasonable judgment of the Mortgagee, the Premises can be
restored to an architectural and economic unit of the same
character and not less valuable than the same was prior to the
Insured Casualty, and adequately securing the outstanding
balance of the Indebtedness Hereby Secured and the insurers do
not deny liability to the insured, then, if no Event of
Default as hereinafter defined shall have occurred and be then
continuing, the proceeds of insurance shall be applied to
reimburse the Mortgagor for the cost of restoring, repairing,
replacing or rebuilding (herein generally called "Restoring")
the Premises or any part thereof subject to Insured Casualty,
as provided for in Section 9 hereof;
(c) If in the reasonable judgment of Mortgagee the Premises cannot
be restored to an architectural and economic unit as provided
for in Subsection (b) above, then at any time from and after
the Insured Casualty, upon thirty (30) days written notice to
Mortgagor, Mortgagee may declare the entire balance of the
Indebtedness Hereby Secured to be, and at the expiration of
such thirty (30) day period the Indebtedness Hereby Secured
shall be and become, immediately due and payable;
(d) Except as provided for in Subsection (b) of this Section 7,
Mortgagee shall apply the proceeds of insurance (including
amounts not required for Restoring effected in accordance with
Subsection (b) above) consequent upon any Insured Casualty
toward the Indebtedness Hereby Secured, in such order or
manner as the Mortgagee may elect; provided that no premium or
penalty shall be payable in connection with any prepayment of
the Indebtedness Hereby Secured made out of insurance proceeds
as aforesaid;
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EXHIBIT 10.19
(e) In the event that proceeds of insurance, if any, shall be made
available to the Mortgagor for the restoring of the Premises,
Mortgagor hereby covenants to restore the same so that the
Premises will be of at least equal value and of substantially
the same character as prior to such damage or destruction; all
to be effected in accordance with plans and specifications to
be first submitted to and approved by the Mortgagee;
(f) Any portion of the insurance proceeds remaining after payment
in full of the Indebtedness Hereby Secured shall be paid to
Mortgagor or as ordered by a court of competent jurisdiction;
(g) Money market interest shall be payable by Mortgagee to
Mortgagor on account of any insurance proceeds at anytime held
by Mortgagee.
8. CONDEMNATION. The Mortgagor will give Mortgagee prompt notice of any
proceedings, instituted or threatened, seeking condemnation or taking by eminent
domain or any like process (herein generally called a "Taking"), of all or any
part of the Premises, including damages to grade; and,
(a) Mortgagor hereby assigns, transfers and sets over unto
Mortgagee the entire proceeds of any Award consequent upon any
Taking;
(b) If in the reasonable judgment of the Mortgagee the Premises
can be restored to an architectural and economic unit of the
same character and not less valuable than the Premises prior
to such Taking and adequately securing the outstanding balance
of the Indebtedness Hereby Secured, then if no Event of
Default, as hereinafter defined, shall have occurred and be
then continuing, the Award shall be applied to reimburse
Mortgagor for the cost of Restoring the portion of the
Premises remaining after such Taking, as provided for in
Section 9 hereof,
(c) If in the reasonable judgment of Mortgagee the Premises cannot
be restored to an architectural and economic unit as provided
for in Subsection (b) above, then at any time from and after
the Taking, upon thirty (30) days written notice to Mortgagor,
Mortgagee may declare the entire balance of the Indebtedness
Hereby Secured to be, and at the expiration of such thirty
(30) day period the Indebtedness Hereby Secured shall be and
become, immediately due and payable;
(d) Except as provided for in Subsection (b) of this Section 8,
Mortgagee shall apply any Award (including the amount not
required for Restoration effected in accordance with
Subsection (b) above) toward the indebtedness Hereby Secured
in such order or manner as Mortgagee may elect; provided that
no premium or penalty shall be payable in connection with any
prepayment of the Indebtedness Hereby Secured made out of any
Award as aforesaid;
(e) In the event that any Award shall be made available to the
Mortgagor for Restoring the portion of the Premises remaining
after a Taking, Mortgagor hereby covenants to restore the
remaining portion of the Premises so that it will be of at
least equal value and of substantially the same character as
prior to such Taking,
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EXHIBIT 10.19
all to be effected in accordance with plans and specifications
to be first submitted to and approved by Mortgagee;
(f) Any portion of any Award remaining after payment in full of
the Indebtedness Hereby Secured shall be paid to Mortgagor or
as ordered by a court of competent jurisdiction; and
(g) Money market interest shall be payable by Mortgagee to
Mortgagor on account of any Award at any time held by
Mortgagee.
9. DISBURSEMENT OF INSURANCE PROCEEDS AND CONDEMNATION AWARDS. In the event the
Mortgagor is entitled to reimbursement out of insurance proceeds or any Award
held by the Mortgagee, such proceeds shall be disbursed from time to time upon
the Mortgagee being furnished with satisfactory evidence of the estimated cost
of completion of the Restoring, with funds (or assurances satisfactory to the
Mortgagee that such funds are available) sufficient in addition to the proceeds
of insurance or Award, to complete the proposed Restoring, and with such
architect's certificate, waivers of lien, contractor's sworn statements and such
other evidence of cost and of payment as the Mortgagee may reasonably require
and approve; and the Mortgagee may, in any event, require that all plans and
specifications for such Restoring be submitted to and approved by the Mortgagee
prior to commencement of work. No payment made prior to the final completion of
the Restoring shall exceed ninety percent (90%) of the value of the work
performed from time to time; funds other than proceeds of insurance or the Award
shall be disbursed prior to disbursement of such proceeds; and at all times the
undisbursed balance of such proceeds remaining in the hands of the Mortgagee,
together with funds deposited for the purpose or irrevocably committed to the
satisfaction of the Mortgagee by or on behalf of the Mortgagor for the purpose,
shall be at least sufficient in the reasonable judgment of the Mortgagee to pay
for the cost of completion of the Restoring, free and clear of all liens or
claims for lien.
10. STAMP TAX. If, by the laws of the United States of America, or of any state
having jurisdiction over the Mortgagor, any tax is due or becomes due in respect
of the issuance of the Note, the Mortgagor shall pay such tax in the manner
required by such law.
11. PREPAYMENT PRIVILEGE. At such time as the Mortgagor is not in default under
the terms of the Note, or under the terms of this Mortgage, the Mortgagor shall
have the privilege of making prepayments on the principal of the Note (in
addition to the required payments thereunder) in accordance with the terms and
conditions, if any, set forth in the Note, but not otherwise.
12. EFFECT OF EXTENSIONS OF TIME, AMENDMENTS ON JUNIOR LIENS AND OTHERS. If the
payment of the Indebtedness Hereby Secured, or any part thereof, be extended or
varied, or if any part of the security be released, all persons now or at any
time hereafter liable therefor, or interested in the Premises, shall be held to
assent to such extension, variation or release, and their liability, if any, and
the lien, and all provisions hereof, shall continue in full force and effect;
the right of recourse against all such persons being expressly reserved by the
Mortgagee, notwithstanding any such extensions, variation or release. Any
person, firm or corporation taking a junior mortgage or other lien upon the
Premises or any interest therein, shall take the said lien subject to the rights
of the Mortgagee herein to amend, modify and supplement this Mortgage, the Note,
11
EXHIBIT 10.19
and the Assignment hereinafter referred to, 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 the Indebtedness Hereby Secured, 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 in this Section contained shall be construed as
waiving any provision of Section 17 hereof which provides, among other things,
that it shall constitute an Event of Default if the Premises be sold, conveyed
or encumbered.
13. EFFECT OF CHANGES IN TAX LAWS. In the event of the enactment after the date
hereof by any legislative authority having jurisdiction of the Premises of any
law deducting from the value of land for the purposes of taxation, any lien
thereon, or imposing upon the Mortgagee the payment of the whole or any part of
the taxes or assessments or charges or liens herein required to be paid by the
Mortgagor, or changing in any way the laws relating to the taxation of mortgage
or debts secured by mortgages or the Mortgagee's interest in the Premises, or
the method of collecting taxes, so as to affect this Mortgage or the
Indebtedness Hereby Secured, or the holder thereof, then, and in any such event,
the Mortgagor, upon demand by the Mortgagee, shall pay such taxes or
assessments, or reimburse the Mortgagee therefor; provided that if in the
opinion of counsel for the Mortgagee the payment by Mortgagor of any such taxes
or assessments shall be unlawful, then the Mortgagee may, by notice to the
Mortgagor, declare the entire principal balance of the Indebtedness Hereby
Secured to be due and payable on a date specified in such notice not less than
180 days after the date of such notice, and the Indebtedness Hereby Secured
shall then be due and payable without premium or penalty on the date so
specified in such notice.
14. MORTGAGEE'S PERFORMANCE OF MORTGAGOR'S OBLIGATIONS. Upon the occurrence of
an Event of Default herein, the Mortgagee either before or after acceleration of
the Indebtedness Hereby Secured or the foreclosure of the lien hereof and during
the period of redemption, if any, may, but shall not be required to, make any
payment or perform any act herein which is required of the Mortgagor (whether or
not the Mortgagor is personally liable therefor) in any form and manner deemed
expedient to the Mortgagee; and the Mortgagee may, but shall not be required to
make full or partial payments of principal or interest on prior encumbrances, if
any, and purchase, discharge, compromise or settle any tax lien or other prior
lien or title or claim thereof, or redeem from any tax sale or forfeiture
affecting the Premises, or contest any tax or assessment, and may, but shall not
be required to, complete construction, furnishing and equipping of the
improvements upon the Premises and rent, operate and manage the Premises and
such Improvements and pay operating costs and expenses, including reasonable
management fees, of every kind and nature in connection therewith, so that the
Premises and Improvements shall be operational and usable for their intended
purposes. All monies paid for any of the purposes herein authorized, and all
expenses paid or incurred in connection therewith, including reasonable
attorney's fees and any other monies advanced by the Mortgagee to protect the
Premises and the lien hereof, or to complete construction, furnishing and
equipping or to rent, operate and manage the Premises and such Improvements or
to pay any such operating costs and expenses thereof or to keep the Premises and
Improvements operational and usable for their intended purposes, shall be so
much additional Indebtedness Hereby Secured, whether or not they exceed the
amount of the Note, and shall become immediately due and payable without notice,
and with interest thereon at the default rate, specified in the Note (herein
called the "Default Rate"). Inaction of the Mortgagee shall never be considered
a waiver of any right accruing to it on account of any default on the part of
the Mortgagor. The Mortgagee, in making
12
EXHIBIT 10.19
any payment hereby authorized (a) relating to taxes and assessments, may do so
according to any bill, statement or estimate, without inquiry into the validity
of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof;
(b) for the purchase, discharge, compromise or settlement of any other prior
lien, may do so without inquiry as to the validity or amount of any claim for
lien which may be asserted; or (c) in connection with the completion of
construction, furnishing or equipping of the improvements or the Premises or the
rental, operation or management of the Premises or the payment of operating
costs and expenses thereof, Mortgagee may do so in such amounts and to such
persons as Mortgagee may deem appropriate and may enter into such contracts
therefor as Mortgagee may deem appropriate or may perform the same itself.
15. INSPECTION OF PREMISES. The Mortgagee shall have the right to inspect the
Premises at all reasonable times, and access thereto shall be permitted for that
purpose, provided, if no emergency condition or Event of Default shall then
exist, Mortgagee shall provide Mortgagor with no less than 48 hours prior notice
of an inspection.
16. FINANCIAL STATEMENTS. The Mortgagor will, within one hundred twenty (120)
days after the end of each fiscal year of Mortgagor (or if Mortgagor is a
trustee, then the end of each fiscal year of the beneficiary of Mortgagor),
furnish to the Mortgagee at the place where interest thereon is then payable,
the financial statement and tax returns of the Mortgagor (or the beneficiary of
Mortgagor if Mortgagor is a trustee) and each guarantor or co-maker of the Note
(provided, the financial statements of each individual guarantor shall not be
due until October 1 of each year), currently dated, and financial and operating
statements of the Premises for such fiscal year, all in reasonable detail and in
any event including a balance sheet and income statement. Such financial and
operating statements shall be prepared at the expense of Mortgagor in such
manner as may be reasonably acceptable to the Mortgagee. If the statements
furnished shall not be prepared in accordance with generally accepted accounting
principles consistently applied, or if Mortgagor fails to furnish the same when
due, Mortgagee may audit or cause to be audited the books of the Premises, the
Mortgagor, the beneficiary of Mortgagor, if applicable, and/or each guarantor or
co-maker of the Note, at Mortgagor's expense, and the costs of such audit shall
be so much additional Indebtedness Hereby Secured bearing interest, if not paid
within ten (10) days of written demand, at the Default Rate until paid, and
payable upon demand. In addition to the above, Mortgagor shall deliver within
one hundred twenty (120) days after the end of each fiscal year of each
corporate guarantor of the Note, the reviewed financial statements of each such
corporate guarantor for such fiscal year.
17. RESTRICTIONS ON TRANSFER. It shall be an immediate Event of Default and
default hereunder if, without the prior written consent of the Mortgagee, the
Mortgagor shall create, effect, contract for, commit to or consent to or shall
suffer or permit any conveyance, sale, assignment, transfer, lien, pledge,
mortgage, security interest or other encumbrance or alienation of the Premises
or any part thereof, or interest therein, excepting only sales or other
disposition of Collateral as defined in Section 18 no longer useful in
connection with the operation of the Premises (herein called "Obsolete
Collateral"), provided that prior to the sale or other disposition thereof, such
Obsolete Collateral has been replaced by Collateral, subject to the first and
prior lien hereof, of at least equal value and utility. Mortgagee may condition
its consent of the foregoing upon an increase in rate of interest payable upon
the Indebtedness Hereby Secured, change in monthly
13
EXHIBIT 10.19
payments thereon, change in maturity thereof and/or the payment of a fee, all as
Mortgagee may in its sole discretion require.
(Each event described in the foregoing Section 17 being sometimes hereinafter
referred to as "Unpermitted Transfer") in each case whether any such conveyance,
sale, assignment, transfer, lien, pledge, mortgage, security interest,
encumbrance or alienation is effected directly, indirectly, voluntarily or
involuntarily, by operation of law or otherwise; provided that the foregoing
provisions of this Section 17 shall not apply (i) to liens securing the
Indebtedness Hereby Secured, (ii) to the lien of current taxes and assessments
not yet due and payable or (iii) to any transfers of the Premises, or part
thereof, or interest therein, by or on behalf of an owner thereof who is
deceased or declared judicially incompetent, to such owner's heirs, legatees,
devisees, executors, administrators, estate, personal representatives and/or
committee. The provisions of this Section 17 shall be operative with respect to,
and shall be binding upon, any persons who, in accordance with the terms hereof
or otherwise, shall acquire any part of or interest in or encumbrance upon the
Premises.
18. UNIFORM COMMERCIAL CODE. This Mortgage shall be construed as a Mortgage on
real property, and it shall also constitute and serve as a Security Agreement on
the Personal Property and shall constitute, until the grant of this Mortgage
shall terminate, a first and prior pledge and assignment and a first and prior
security interest under the Uniform Commercial Code of the State in which the
Premises is located (herein called the "Code") with respect to any part of the
Premises which may or might now or hereafter be or be deemed to be Personal
Property or fixtures (all herein called "Collateral"); all of the terms,
provisions, conditions and agreements contained in this Mortgage pertain and
apply to the Collateral as fully and to the same extent as to any other property
comprising the Premises; and the following provisions of this Section 18 shall
not limit the generality or applicability of any other provisions of this
Mortgage but shall be in addition thereto:
(a) Mortgagee shall have all the rights, remedies and recourses
with respect to the Collateral afforded a secured party by the
Code, now or hereafter in effect, in addition to, and not in
limitation of, the other rights, remedies and recourses
afforded by the Loan Documents.
(b) The Collateral is to be used by the Mortgagor solely for
business purposes, being installed upon the Premises for
Mortgagor's own use or as the equipment and furnishings
furnished by Mortgagor, as landlord, to tenants of the
Premises.
(c) The Collateral will be kept at the Real Estate and will not be
removed therefrom without the consent of the Mortgagee (being
the Secured Party as that term is used in the Code) by
Mortgagor or any other person; and the Collateral may be
affixed to such Real Estate but will not be affixed to any
other real estate.
(d) The only persons having any interest in the Collateral are the
Mortgagor, Mortgagee and any tenants thereof reasonably
approved by Mortgagee.
(e) No Financing Statement covering any of the Collateral or any
proceeds thereof is on file in any public office except
pursuant hereto; and Mortgagor will at its own
14
EXHIBIT 10.19
cost and expense, upon demand, furnish to the Mortgagee such
further information and will execute and deliver to the
Mortgagee such financing statements and other documents in
form reasonably satisfactory to the Mortgagee and will do all
such acts and things as the Mortgagee may at any time or from
time to time reasonably request or as may be necessary or
appropriate to establish and maintain a perfected security
interest in the Collateral as security for the Indebtedness
Hereby Secured, and does hereby authorize Mortgagee to prepare
and file financing statements and other documents in form
reasonably satisfactory to Mortgagee and to do all such acts
and other things as Mortgagee may at any time or from time to
time deem reasonably necessary or appropriate to establish and
maintain a perfected security interest in the Collateral,
subject to no adverse liens or encumbrances, and the Mortgagor
will pay the cost of filing the same or filing or recording
such financing statements or other documents, and this
instrument, in all public offices wherever filing or recording
is deemed by the Mortgagee to be necessary or desirable.
(f) Upon the occurrence of any Event of Default hereunder
(regardless of whether the Code has been enacted in the
jurisdiction where rights or remedies are asserted) and at any
time thereafter (such Event of Default not having previously
been cured), the Mortgagee at its option may declare the
Indebtedness Hereby Secured immediately due and payable, all
as more fully set forth in Section 19 hereof, and thereupon
Mortgagee shall have the remedies of a secured party under the
Code, including, without limitation, the right to take
immediate and exclusive possession of the Collateral, or any
part thereof, and for that purpose may, so far as the
Mortgagor can give authority therefor, with or without
judicial process, enter (if this can be done without breach of
the peace) upon any place which the Collateral or any part
thereof may be situated and remove the same therefrom
(provided that if the Collateral is affixed to real estate,
such removal shall be subject to the conditions stated in the
Code); and the Mortgagee shall be entitled to hold, maintain,
preserve and prepare the Collateral for sale, until disposed
of, or may propose to retain the Collateral subject to the
Mortgagor's right of redemption in satisfaction of the
Mortgagor's obligations as provided in the Code. The Mortgagee
without removal may render the Collateral unusable and dispose
of the Collateral on the Premises. The Mortgagee may require
the Mortgagor to assemble the Collateral and make it available
to the Mortgagee for its possession at a place to be
designated by Mortgagee which is reasonably convenient to both
parties. The Mortgagee will give at least ten (10) days notice
of the time and place of any public sale thereof or of the
time after which any private sale or any other intended
disposition thereof is made. The requirements of reasonable
notice shall be met if such notice is mailed, by certified
mail or equivalent, postage prepaid, to the address of
Mortgagor determined as provided in Section 37 hereof, at
least ten (10) days before the time of the sale or
disposition. The Mortgagee may buy at any public sale, and if
the Collateral is a type customarily sold in a recognized
market or is of a type which is the subject of widely
distributed standard price quotations, Mortgagee may buy at
any private sale. Any such sale may be held as part of and in
conjunction with any foreclosure sale of the Real Estate
comprised within the Premises, the Collateral and Real Estate
to be sold as
15
EXHIBIT 10.19
one lot if Mortgagee so elects. The net proceeds realized upon
any such disposition, after deduction for the expenses of
retaking, holding, preparing for sale, selling or the like and
the reasonable attorneys' fees and legal expenses incurred by
Mortgagee, shall be applied toward the Indebtedness Hereby
Secured. The Mortgagee will account to the Mortgagor for any
surplus realized on such disposition. The Mortgagor will
remain liable for any deficiency remaining after any such
disposition.
(g) The remedies of the Mortgagee hereunder are cumulative and the
exercise of any one or more of the remedies provided for
herein or under the Code shall not be construed as a waiver of
any of the other remedies of the Mortgagee, including having
the Collateral deemed part of the Real Estate upon any
foreclosure thereof so long as any part of the Indebtedness
Hereby Secured remains unsatisfied.
(h) The terms and provisions contained in this Section 18 shall,
unless the context otherwise requires, have the meanings and
be construed as provided in the Code.
19. EVENTS OF DEFAULT. If one or more of the following events (herein called
"Events of Default") shall occur:
(a) if default is made in the due and punctual payment of the Note
or any installment thereof, either principal or interest, as
and when the same is due and payable; or
(b) If default is made in the making of any payment of any other
monies required to be made under the Note or hereunder and
such default shall not be cured within seven (7) days after
written notice thereof to Mortgagor; or
(c) If an Unpermitted Transfer as described in Section 17 hereof
shall occur and be continuing without notice or period of
grace of any kind; or
(d) If default is made in the maintenance and delivery to
Mortgagee of insurance required to be maintained and delivered
hereunder, without notice or grace of any kind; or
(e) If (i) (i) The Mortgagor shall file a voluntary petition for
relief under the United States Bankruptcy Code (the
"Bankruptcy Code") or any similar law, state or
federal, now or hereafter in effect, or
(ii) The Mortgagor shall file an answer admitting
insolvency or inability to pay its debts, or
(iii) Within ninety (90) days after the filing against
Mortgagor of any involuntary proceedings under such
Bankruptcy Code or similar law, such proceedings
shall not have been vacated or stayed, or
(iv) The Mortgagor shall be adjudicated a bankrupt, or a
trustee or receiver shall be appointed for the
Mortgagor or for all or the major part of the
Mortgagor's property or the Premises, in any
involuntary proceeding, or
16
EXHIBIT 10.19
any court shall have taken jurisdiction of all or the
major part of the Mortgagor's property or the
Premises in any involuntary proceeding for the
reorganization, dissolution, liquidation or winding
up of the Mortgagor, and such trustee or receiver
shall not be discharged or such jurisdiction
relinquished or vacated or stayed on appeal or
otherwise stayed within ninety (90) days, or
(v) The Mortgagor shall make an assignment for the
benefit of creditors or shall admit in writing its
inability to pay its debts generally as they become
due or shall consent to the appointment of a receiver
or trustee or liquidator of all or the major part of
its property, or the Premises; or
(f) If any default shall exist under the provisions of Section 25
hereof or under the Assignment; or
(g) if default shall continue for thirty (30) days after notice
thereof by the Mortgagee to the Mortgagor in the due and
punctual performance or observance of any other agreement or
condition herein contained, provided, however, that in the
event of a default which is not capable of being cured within
said 30 day period, the time to cure the same shall be
extended for an additional 30 day period if within said 30 day
period, Mortgagor shall initiate and diligently pursue a
course of action reasonably expected to cure such default; or
(h) If the Premises shall be abandoned; or
(i) If any representation made by or on behalf of Mortgagor in
connection with the Indebtedness Hereby Secured, shall prove
untrue in any material respect; or
(j) If any guarantor of the Indebtedness Hereby Secured shall
terminate, repudiate; revoke or disavow any of its or his
obligations under its or his guarantee agreement executed by
it or him in connection with the Indebtedness Hereby Secured,
or breach any of the terms of such guarantee agreement;
then the Mortgagee is hereby authorized and empowered, at its option, and
without affecting the lien hereby created or the priority of said lien or any
right of the Mortgagee hereunder, to declare, without further notice all
Indebtedness Hereby Secured to be immediately due and payable, whether or not
such default is thereafter remedied by the Mortgagor, and the Mortgagee may
immediately proceed to foreclose this Mortgage and/or exercise any right, power
or remedy provided by this Mortgage, the Note, the Assignment, any of the other
Loan Documents, or by law or in equity conferred.
In any case in which under the provisions of this Mortgage Mortgagee has a right
to institute foreclosure proceedings, whether before or after the whole
principal sum secured hereby is declared to be immediately due as aforesaid, or
whether before or after the institution of legal proceedings to foreclose the
lien hereof or before or after judgment thereunder, and at all times until
confirmation of sale, Mortgagor shall forthwith, upon demand of Mortgagee,
surrender to Mortgagee and Mortgagee shall be entitled to take and upon
Mortgagee's request to the court to be placed in actual possession of the
Premises or any part thereof, personally, or by its agent or
17
EXHIBIT 10.19
attorneys as provided in Subsections (b)(2) and (c) of Section 5/15-1701 of the
Illinois Mortgage Foreclosure Law (the "Act"). In such event Mortgagee in its
discretion may, with or without force and with or without process of law, enter
upon and take and maintain or may apply to the court in which a foreclosure is
pending to be placed in possession of all or any part of said Premises, together
with all documents, books, records, papers and accounts of Mortgagor or the then
owner of the Premises relating thereto, and may exclude Mortgagor, it agents or
servants, wholly therefrom and may, as attorney in fact or agent of Mortgagor,
or in its own name as Mortgagee and under the powers herein granted, hold,
operate, manage and control the Premises and conduct the business, if any,
thereof, either personally or by its agents, and with full power to use such
measures, legal or equitable, as in its discretion or in the discretion of its
successors or assigns may be deemed proper or necessary to enforce the payment
or security of the avails, rents, issues, and profits of the Premises, including
actions for the recovery of rent, actions in forcible detainer and actions in
distress for rent, and with full power: (a) to cancel or terminate any lease or
sublease for any cause or on any ground which would entitle Mortgagor to cancel
the same; (b) to elect to disaffirm any lease or sublease which is then
subordinate to the lien hereof; (c) to extend or modify any then existing leases
and to make new leases, which extensions, modifications and new leases may
provide for terms to expire, or for options to lessees to extend or renew terms
to expire, beyond the maturity date of the indebtedness hereunder and beyond the
date of the issuance of a deed or deeds to a purchaser or purchasers at a
foreclosure sale, it being understood and agreed that any such leases, and the
options or other such provisions to be contained therein, shall be binding upon
Mortgagor and all persons whose interests in the Premises are subject to the
lien hereof and upon the purchaser or purchasers at any foreclosure sale,
notwithstanding any redemption from sale, discharge of the Mortgage
indebtedness, satisfaction of any foreclosure decree, or issuance of any
certificate of sale or deed to any purchaser; (d) to enter into any management,
leasing or brokerage agreements covering the Premises; (e) to make all necessary
or proper repairs, decorating, renewals, replacements, alterations, additions,
betterments and improvements to the Premises as to it may seem judicious; (f) to
insure and reinsure the same and all risks incidental to Mortgagee's possession,
operation and management thereof; and (g) to receive all of such avails, rents,
issues and profits; hereby granting full power and authority to exercise each
and every of the rights, privileges and powers herein granted at any and all
times hereafter, without notice to Mortgagor. Without limiting the generality of
the foregoing provisions of this Section, Mortgagee shall also have all power,
authority and duties as provided in Section 5/15-1703 of the Act.
Mortgagee shall not be obligated to perform or discharge, nor does it hereby
undertake to perform or discharge, any obligation, duty or liability under any
leases. Mortgagor shall and does hereby agree to indemnify and hold Mortgagee
harmless of and from any and all liability, loss or damage which it may or might
incur by reason of its performance of any action authorized under this Section
19 and of and from any and all claims and demands whatsoever which may be
asserted against it by reason of any alleged obligations or undertakings on its
part to perform or discharge any of the terms, covenants or agreements of
Mortgagor. Should Mortgagee incur any such liability, loss or damage, by its
performance or nonperformance of actions authorized by this Section, or in the
defense of any claims or demands, the amount thereof, including costs, expenses
and reasonable attorneys' fees, together with interest on any such amount at the
Default Rate (as that term is hereinafter defined) shall be secured hereby, and
Mortgagor shall reimburse Mortgagee therefore immediately upon demand.
18
EXHIBIT 10.19
20. FORECLOSURE. When the Indebtedness Hereby Secured, or any part thereof,
shall become due, whether by acceleration or otherwise, the Mortgagee shall have
the right to foreclose the lien hereof for such Indebtedness or part thereof. In
any suit or proceeding to foreclose the lien hereof, there shall be allowed and
included as additional indebtedness in the decree for sale, all reasonable
expenditures and expenses which may be paid or incurred by or on behalf of the
Mortgagee for reasonable attorneys' fees, appraisers' fees, outlays for
documentary and expert evidence, stenographers' charges, publication costs, and
costs (which may be estimated as to items to be expended after entry of the
decree) of procuring all such abstracts of title, title searches and
examinations, title insurance policies, and similar data and assurance with
respect to title, as the Mortgagee may deem reasonably necessary either to
prosecute such suit or to evidence to bidders at sales which may be had pursuant
to such decree, the true conditions of the title to or the value of the
Premises. All expenditures and expenses of the nature in this Section mentioned,
and such expenses and fees as may be incurred in the protection of the Premises
and the maintenance of the lien of this Mortgage, including the fees of any
attorney employed by the Mortgagee in any litigation or proceedings affecting
this Mortgage, the Note or the Premises, including probate and bankruptcy
proceedings, or in preparation for the commencement or defense of any proceeding
or threatened suit or proceeding, shall be immediately due and payable by the
Mortgagor, with interest thereon at the Default Rate. If the Premises consist of
multiple parcels, Mortgagee, in its sole and absolute discretion, may elect to
foreclosure on less than all of the parcels.
21. PROCEEDS OF FORECLOSURE SALE. The proceeds of any foreclosure sale of the
Premises shall be distributed and applied in the following order of priority:
First, on account of all costs and expenses incident to the foreclosure
proceedings, including all such items as are mentioned in Section 20 hereof,
Second, all other items which, under the terms hereof, constitute Indebtedness
Hereby Secured additional to that evidenced by the Note, with interest on such
items as herein provided; Third, to interest and any premium remaining unpaid
upon the Note; Fourth, to the principal remaining unpaid upon the Note; and
lastly, any overplus to the Mortgagor, and its successor or assigns, as their
rights may appear.
22. RECEIVER. Upon, or at any time after, the filing of a complaint to foreclose
this Mortgage, the court in which such complaint is filed may appoint a receiver
of the Premises. Such appointment may be made either before or after sale,
without notice, without regard to solvency or insolvency of the Mortgagor at the
time of application for such receiver, and without regard to the then value of
the Premises or whether the same shall be then occupied as a homestead or not;
and the Mortgagee hereunder or any holder of the Note may be appointed as such
receiver. Such receiver shall have the power to collect the rents, issues and
profits of the Premises during the pendency of such foreclosure suit and, in
case of a sale and a deficiency, during the full statutory period of redemption,
if any, whether there be a redemption or not, as well as during any further
times when the Mortgagor, except for the intervention of such receiver, would be
entitled to collection of such rents, issues and profits, and all other powers
which may be necessary or are usual in such cases for the protection,
possession, control, management and operation of the Premises during the whole
of said period, the court may, from time to time, authorize the receiver to
apply the net income from the Premises in his hands in payment in whole or in
part of:
19
EXHIBIT 10.19
(a) The Indebtedness Hereby Secured or the indebtedness secured by
any decree foreclosing this Mortgage, or any tax, special
assessment or other lien which may be or become superior to
the lien hereof or of such decree, provided such application
is made to the foreclosure sale; or
(b) The deficiency in case of a sale and deficiency.
23. INSURANCE UPON FORECLOSURE. In case of an insured loss after foreclosure
proceedings have been instituted, the proceeds of any insurance policy or
policies, if not applied in Restoring the Improvements, as aforesaid, shall be
used to pay the amount due in accordance with any decree of foreclosure that may
be entered in any such proceedings, and the balance, if any, shall be paid as
the court may direct. In the case of foreclosure of this Mortgage, the court, in
its decree, may provide that the Mortgagee's clause attached to each of the
casualty insurance policies may be canceled and that the decree creditor may
cause a new loss clause to be attached to each of said casualty insurance
policies making the loss thereunder payable to said decree creditors; and any
such foreclosure decree may further provide that in case of one or more
redemptions under said decree, pursuant to the statutes in each such case made
and provided, then in every such case, each and every successive redemptor may
cause the preceding loss clause attached to each casualty insurance policy to be
canceled and a new loss clause to be attached thereto, making the loss
thereunder payable to such redemptor. In the event of foreclosure sale, the
Mortgagee is hereby authorized, without the consent of the Mortgagor, to assign
any and all insurance policies to the purchaser at the sale, or to take other
steps as the Mortgagee may deem advisable to cause the interest of such
purchaser to be protected by any of said insurance policies.
24. WAIVER. The Mortgagor hereby covenants and agrees that it will not at any
time insist upon or plead, or in any manner whatever claim or take any advantage
of, any stay, exemption or extension law or any so-called "Moratorium Law" now
or at any time hereafter in force, nor claim, take or insist upon any benefit or
advantage of or from any law now or hereafter in force providing for the
valuation or appraisement of the Premises, or any part thereof, prior to any
sale or sales thereof to be made pursuant to any provisions herein contained, or
to decree, judgment or order of any court of competent jurisdiction; or after
such sale or sales claim or exercise, any rights under any statute now or
hereafter in force to redeem the property so sold, or any part thereof, or
relating to the marshaling thereof, upon foreclosure sale or other enforcement
hereof. THE MORTGAGOR HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS OF REDEMPTION
FROM SALE UNDER ANY ORDER OR DECREE OF FORECLOSURE OF THIS MORTGAGE, ON ITS OWN
BEHALF, ON BEHALF OF THE BENEFICIARIES OF MORTGAGOR, AND ON BEHALF OF ALL OTHER
PERSONS CLAIMING OR HAVING AN INTEREST (DIRECT OR INDIRECT) BY, THROUGH OR UNDER
MORTGAGOR, AND ON BEHALF OF EACH AND EVERY PERSON ACQUIRING ANY INTEREST IN OR
TITLE TO THE PREMISES SUBSEQUENT TO THE DATE HEREOF, IT BEING THE INTENT HEREOF
THAT ANY AND ALL SUCH RIGHTS OF REDEMPTION OF THE MORTGAGOR AND OF ALL OTHER
PERSONS ARE AND SHALL BE DEEMED TO BE HEREBY WAIVED TO THE FULL EXTENT PERMITTED
BY THE PROVISIONS OF CHAPTER 735, SECTION 5/15-1601 OF THE ILLINOIS COMPILED
STATUTES OR OTHER APPLICABLE LAW OR REPLACEMENT STATUTES. The Mortgagor will not
invoke or utilize any such law or laws or otherwise hinder, delay or impede the
execution of any right, power or remedy herein or otherwise granted or delegated
to the Mortgagee, but will suffer
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EXHIBIT 10.19
and permit the execution of every such right, power and remedy as though no such
law or laws had been made or enacted. If the Mortgagor is a trustee, Mortgagor
represents that the provisions of this Section (including the waiver of
redemption rights) were made at the express direction of Mortgagor's
beneficiaries and the persons having the power of direction over Mortgagor and
are made on behalf of the Trust Estate of Mortgagor and all beneficiaries of
Mortgagor, as well as all other persons mentioned above.
25. ASSIGNMENT. As further security for the Indebtedness Hereby Secured, the
Mortgagor has, concurrently herewith, executed and delivered to the Mortgagee a
separate instrument (herein called the "Assignment") dated as of the date
hereof, wherein and whereby, among other things, the Mortgagor has assigned to
the Mortgagee all of the rents, issues and profits and/of any and all leases
and/or rights of management of the Premises, all as therein more specifically
set forth, which said Assignment is hereby incorporated herein by reference as
fully and with the same effect as if set forth herein at length. The Mortgagor
agrees that it will duly perform and observe all of the terms and provisions on
its part to be performed and observed under the Assignment. The Mortgagor
further agrees that it will duly perform and observe all the terms and
provisions on lessor's part to be performed and observed under any and all
leases of the Premises to the end that no default on the part of lessor shall
exist thereunder. Nothing herein contained shall be deemed to obligate the
Mortgagee to perform or discharge any obligation, duty or liability of lessor
under any lease of the Premises, and the Mortgagor shall and does hereby
indemnify and hold the Mortgagee harmless from any and all liability, loss or
damage which the Mortgagee may or might incur under any lease of the Premises or
by reason of the Assignment; and any and all such liability, loss or damage
incurred by the Mortgagee, together with the costs and expenses, including
reasonable attorneys' fees, incurred by the Mortgagee in the defense of any
claims or demands therefor (whether successful or not), shall be so much
additional Indebtedness Hereby Secured, and the Mortgagor shall reimburse the
Mortgagee therefor on demand, together with interest at the Default Rate from
the date of demand to the date of payment.
Without first obtaining the prior written consent of Mortgagee, which shall not
be unreasonably withheld, Mortgagor will not (i) execute any further assignment
of any of its right, title or interest in any lease or rents and profits of the
Premises (except to Mortgagee); or (ii) terminate or consent to the cancellation
or surrender of any lease of the Premises; or (iii) terminate or consent to the
consent or cancellation or surrender of any other lease of the Premises or of
any part thereof, now existing or hereafter to be made; or (iv) modify any lease
of the Premises; or (v) accept prepayments of any installments of rent to become
due under any of said leases, except prepayments in the nature of security for
the performance by a lessee of its obligations thereunder; or (vi) in any other
manner impair the value of the Premises or the security of this Mortgage; or
(vii) execute any lease of all or any portion of the Premises; or (viii) permit
any-lease of the Premises or any part thereof to become subordinate to any lien
other than the lien of this Mortgage. All leases of the Premises or any part
thereof are subject to the approval of Mortgagee, which shall not be
unreasonably withheld.
26. MORTGAGEE IN POSSESSION. Nothing herein contained shall be construed as
constituting the Mortgagee a mortgagee or trustee in possession of the Premises
or the Collateral in the absence of the actual taking of possession of the
Premises by the Mortgagee.
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EXHIBIT 10.19
27. BUSINESS LOAN. It is understood and agreed that the loan evidenced by the
Note and secured hereby is a business loan within the purview of Section 205/4
of Chapter 815 of Illinois Compiled Statutes (or any substitute, amended, or
replacement statutes) transacted solely for the purpose of carrying on or
acquiring the business of the Mortgagor or, if the Mortgagor is a trustee, for
the purpose of carrying on or acquiring the business of the beneficiaries of the
Mortgagor as contemplated by said Section.
28. ENVIRONMENTAL CONDITIONS. Mortgagor represents that except as disclosed in
that certain Phase I environmental site assessment of The Imperial, 1366 West
Fullerton Avenue, Chicago, Illinois prepared by GaiaTech, Incorporated dated as
of November 25, 1997 under Project No. 2267-60: (i) Mortgagor has not used
Hazardous Materials (as defined hereinafter) on, from or affecting the Premises
in any manner which violates federal, State of Illinois or any Illinois unit of
local government's laws, ordinances, rules, regulations, or policies governing
the use, storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of Hazardous Materials, and that, to the best knowledge
of Mortgagor, no prior owner of the Premises or any tenant, subtenant, occupant,
prior tenant, prior subtenant or prior occupant has used Hazardous Materials on,
from or affecting the Premises in any manner which violates federal, state or
local laws, ordinances, rules, regulations or policies governing the use,
storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of Hazardous Materials; (ii) Mortgagor has never received
any notice of any violations of federal, State of Illinois or Illinois local
governmental unit laws, ordinances, rules, regulations or policies governing the
use, storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of Hazardous Materials and, to the best knowledge of
Mortgagor, there have been no actions commenced or threatened by any party for
noncompliance. For purposes of this Mortgage, "Hazardous Materials" includes,
without limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances or related materials
defined in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous
Materials Transportation Act, as amended (42 U.S.C. Sections 1801, et seq.), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901, et
seq.), and in the regulations adopted and publications promulgated pursuant
thereto.
Mortgagor shall keep or cause the Premises to be kept free of Hazardous
Materials except to the extent that such Hazardous Materials are stored and/or
used in compliance with applicable law, and, without limiting the foregoing,
Mortgagor shall not cause or permit the Premises to be used to generate,
manufacture, refine, transport, treat, store, handle, dispose of, transfer,
produce, or process Hazardous Materials, except in compliance with all
applicable federal, state and local laws and regulations, nor shall Mortgagor
cause or permit, as a result of any intentional or unintentional act or omission
on the part of Mortgagor a release of Hazardous Materials onto the Premises or
onto any other property, and Mortgagor shall use its best efforts to prevent any
intentional act or omission on the part of any tenant, subtenant or occupant
from releasing Hazardous Materials onto the Premises or onto any other property.
Upon written notice from Mortgagee to Mortgagor for reasonable cause, Mortgagor
shall (i) conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions necessary to clean up and
remove all Hazardous Materials, on, under, from or affecting the Premises in
accordance with all applicable federal, state and local laws,
22
EXHIBIT 10.19
ordinances, rules, regulations and policies, to the reasonable satisfaction of
Mortgagee, and in accordance with the orders and directives of all federal,
state, and local governmental authorities and (ii) defend, indemnify and hold
harmless Mortgagee, its employees, agents, officers and directors, from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, out-of-pocket costs or expenses of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of, or in any way related to, (a)
the presence, disposal, release or threatened release of any Hazardous Materials
on, over, under, from, or affecting the Premises or the soil, water, vegetation,
buildings, personal property, persons or animals thereon; (b) any personal
injury (including wrongful death) or property damage (real or personal) arising
out of or related to such Hazardous Materials; (c) any lawsuit brought or
threatened, settlement reached or government order relating to such Hazardous
Materials, and/or (d) any violation of laws, orders, regulations, or
requirements of Mortgagee, which are based upon or in any way related to such
Hazardous Materials including, without limitation, reasonable attorneys' and
consultants' fees, investigation and laboratory fees, court costs, and
litigation expenses.
29. CONTESTS. Notwithstanding anything to the contrary herein contained,
Mortgagor shall have the right to contest by appropriate legal proceedings
diligently prosecuted any Taxes imposed or assessed upon the Premises or which
may be or become a lien thereon and any mechanics', materialmen's or other liens
or claims for lien upon the Premises (all herein called "Contested Liens"), and
no Contested Lien shall constitute an Event of Default hereunder, if, but only
if:
(a) Mortgagor shall forthwith give notice of any Contested Lien to
Mortgagee at the time the same shall be asserted;
(b) Mortgagor shall deposit with Mortgagee the full amount (herein
called the "Lien Amount") of such Contested Lien, together
with such amount as Mortgagee may reasonably estimate as
interest or penalties which might arise during the period of
contest; provided that in lieu of such payment Mortgagor may
furnish to Mortgagee a bond or title indemnity in such amount
and form, and issued by a bond or title insuring company, as
may be satisfactory to Mortgagee;
(c) Mortgagor shall diligently prosecute the contest of any
Contested Lien by appropriate legal proceedings having the
effect of staying the foreclosure or forfeiture of the
Premises, and shall permit Mortgagee to be represented in any
such contest and shall pay all expenses incurred by Mortgagee
in so doing, including reasonable fees and expenses of
Mortgagee's counsel (all of which shall constitute so much
additional Indebtedness Hereby Secured bearing interest at the
Default Rate until paid, and payable upon demand); and
(d) Mortgagor shall pay such Contested Lien and all Lien Amounts
together with interest and penalties thereon (i) if and to the
extent that any such Contested Lien shall be determined
adverse to Mortgagor, or (ii) forthwith upon demand by
Mortgagee if, in the reasonable opinion of Mortgagee, and
notwithstanding any such contest, the Premises shall be in
jeopardy or in danger of being forfeited or foreclosed;
provided that if Mortgagor shall fail so to do, Mortgagee may,
but shall not be required to, pay all such Contested Liens and
Lien Amounts and interest and penalties thereon and such other
sums as may be necessary in the
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EXHIBIT 10.19
judgment of the Mortgagee to obtain the release and discharge
of such liens; and any amount expended by Mortgagee in so
doing shall be so much additional Indebtedness Hereby Secured
bearing interest at the Default Rate until paid, and payable
upon demand; and provided further that Mortgagee may in such
case use and apply for the purpose monies deposited as
provided in Subsection 29(b) above and may demand payment upon
any bond or title indemnity furnished as aforesaid.
30. TITLE IN MORTGAGOR'S SUCCESSORS. In the event that the ownership of the
Premises or any part thereof becomes vested in a person or persons other than
the Mortgagor, the Mortgagee may, without notice to the Mortgagor, deal with
such successor or successors in interest of the Mortgagor with reference to this
Mortgage and the Indebtedness Hereby Secured in the same manner as with the
Mortgagor. The Mortgagor will give immediate written notice to the Mortgagee of
any conveyance, transfer or change of ownership of the Premises, but nothing in
this Section 30 contained shall vary or negate the provisions of Section 17
hereof.
31. RIGHTS CUMULATIVE. Each right, power and remedy herein conferred upon the
Mortgagee is cumulative and in addition to every other right, power or remedy,
express or implied, given now or hereafter existing, at law or in equity, and
each and every right, power and remedy herein set forth or otherwise so existing
may be exercised from time to time as often and in such order as may be deemed
expedient by the Mortgagee, and the exercise or the beginning of the exercise of
one right, power or remedy shall not be a waiver of the right to exercise at the
same time or thereafter any other right, power or remedy; and no delay or
omission of the Mortgagee in the exercise of any right, power or remedy accruing
hereunder or arising otherwise shall impair any such right, power or remedy, or
be construed to be a waiver of any default or acquiescence therein.
32. SUCCESSORS AND ASSIGNS. This Mortgage and each and every covenant, agreement
and other provision hereof shall be binding upon the Mortgagor and its
successors and assigns (including, without limitation, each and every from time
to time record owner of the Premises or any other person having an interest
therein) and shall inure to the benefit of the Mortgagee and its successors and
assigns. Wherever herein the Mortgagee is referred to, such reference shall be
deemed to include the holder from time to time of the Note, whether so expressed
or not; and each such from time to time holder of the Note shall have and enjoy
all of the rights, privileges, powers, options, benefits and security afforded
hereby and hereunder, and may enforce every and all of the terms and provisions
hereof, as fully and to the same extent and with the same effect as if such from
time to time holder was herein by name specifically granted such rights,
privileges, powers, options, benefits and security and was herein by name
designated the Mortgagee.
33. PROVISIONS SEVERABLE. The unenforceability or invalidity of any provision or
provisions hereof shall not render any other provision or provisions herein
contained unenforceable or invalid.
34. WAIVER OF DEFENSE. No action for the enforcement of the lien or any
provision hereof shall be subject to any defense which would not be good and
available to the party interposing the same in an action at law upon the Note.
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EXHIBIT 10.19
35. CAPTIONS AND PRONOUNS. The captions and headings of the various sections of
this Mortgage are for convenience only, and not to be construed as confining or
limiting in any way the scope or intent of the provisions hereof. Whenever the
context requires or permits, the singular number shall include the plural, the
plural shall include the singular and the masculine, feminine and neuter genders
shall be freely interchangeable.
36. MAXIMUM INDEBTEDNESS HEREBY SECURED AND FUTURE ADVANCES. In no event shall
the Indebtedness Hereby Secured exceed two times the stated principal amount of
the Note. This Mortgage secures the repayment of all advances that Mortgagee may
extend to Mortgagor under the Note, and secures not only existing indebtedness,
but also secures future advances, with interest thereon, whether such advances
are obligatory or to be made at the option of Mortgagee to the same extent as if
such future advances were made on the date of the execution of this Mortgage,
and although there may be no indebtedness outstanding at the time any advance is
made.
37. ADDRESSES AND NOTICES. Any notice or other communication required or
permitted to be given shall be in writing addressed to the respective party as
set forth below and may be personally served, telecopied or sent by overnight
courier or U.S. Mail and shall be deemed given: (a) if served in person, when
served; (b) if telecopied, on the date of transmission if before 5:00 p.m.
(Chicago time) on a business day; provided that a hard copy of such notice is
also sent pursuant to clause (c) or (d) below; (c) if by overnight courier, on
the first business day after delivery to the courier; or (d) if by U.S. Mail, on
the fourth (4th) day after deposit in the mail, postage prepaid, certified mail,
return receipt requested.
If to Mortgagor: Sigmatron International, Inc.
2201 Landmeier Road
Elk Grove Village, Illinois 60007
Attn: Gary R. Fairhead
Fax No. (847) 956-8709
with a copy to: Henry J. Underwood, Jr., Esq.
Defrees & Fiske
200 South Michigan Avenue, Suite 1100
Chicago, Illinois 60604
Telecopier No.: (312) 939-5617
Telephone No.: (312) 372-4000
If to Lender: LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attn: Sara Huizinga
Fax No. (312) 904-0701
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EXHIBIT 10.19
with a copy to: Vedder, Price, Kaufman & Kammholz, P.C.
Attn: Matthew T. O'Connor, Esq.
222 North LaSalle Street
Chicago, Illinois 60601
Fax No. (312) 609-5005
Any party may change its respective address for the giving of notice to another
address by giving at least 10 business days notice of such change. "Business
Day" shall mean any day when Mortgagee is open for business other than Saturday,
Sunday or any other day on which national banks in Chicago, Illinois are not
required to be open for business.
38. MORTGAGOR WILL NOT DISCRIMINATE. Mortgagor covenants and agrees at all times
to be in full compliance with provisions of law prohibiting discrimination on
the basis of race, color, creed or national origin including, but not limited
to, the requirements of Title VIII of the 1968 Civil Rights Act, or any
substitute, amended or replacement Acts.
39. INTEREST AT THE DEFAULT RATE. Without limiting the generality of any
provision herein or in the Note contained, from and after the occurrence of any
Event of Default hereunder, all of the Indebtedness Hereby Secured shall bear
interest at the interest rate after maturity or acceleration as set forth in the
Note (the "Default Rate").
40. CONDITION OF TITLE. Mortgagor represents that it is the owner in fee of the
Real Estate as so described on Exhibit "A" hereto, all of which is encumbered
hereby as security for the Indebtedness Hereby Secured as hereinabove more fully
set forth.
[SIGNATURE PAGE FOLLOWS]
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EXHIBIT 10.19
MORTGAGE AND SECURITY AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, Mortgagor has caused these presents to be signed,
all on and as of the day, month and year first above written.
MORTGAGOR:
SIGMATRON INTERNATIONAL, INC., a
Delaware corporation
By: /s/ Linda K. Blake
-------------------
Print Name: Linda K. Blake
Its: Chief Financial Officer
27