Exhibit 10.15
MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
by
MXL INDUSTRIES, INC.
a Delaware corporation
to and for the benefit of
LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
THIS DOCUMENT PREPARED BY AND
AFTER RECORDING RETURN TO:
Bell, Boyd & Lloyd LLC
70 West Madison
Suite 3300
Chicago, Illinois 60602
Attn: Sandra L. Waldier, Esq.
TABLE OF CONTENTS
Article Page
1. Title..............................................................3
2. Maintenance, Repair, Restoration, Prior Liens, Parking.............3
3. Payment of Taxes and Assessments...................................4
4. Tax Deposits.......................................................4
5. Mortgagee's Interest In and Use of Deposits........................5
6. Insurance..........................................................5
7. Condemnation.......................................................8
8. Stamp Tax..........................................................8
9. Lease Assignment...................................................8
10. Effect of Extensions of Time and Other Changes.....................8
11. Effect of Changes in Laws Regarding Taxation.......................9
12. Mortgagee's Performance of Defaulted Acts and Expenses
Incurred by Mortgagee............................................9
13. Security Agreement................................................10
14. Restrictions on Transfer..........................................12
16. Events of Default; Acceleration...................................14
17. Foreclosure; Expense of Litigation................................15
18. Application of Proceeds of Foreclosure Sale.......................16
19. Appointment of Receiver...........................................16
20. Mortgagee's Right of Possession in Case of Default................16
21. Application of Income Received by Mortgagee.......................17
22. Compliance with Illinois Mortgage Foreclosure Law.................17
23. Rights Cumulative.................................................18
24. Mortgagee's Right of Inspection...................................18
25. Release Upon Payment and Discharge of Mortgagor's Obligations.....18
26. Notices...........................................................18
27. Waiver of Rights..................................................19
28. Contests..........................................................20
29. Expenses Relating to Note and Mortgage............................21
30. Financial Statements..............................................22
31. Statement of Indebtedness.........................................22
32. Further Instruments..............................................22
33. Additional Indebtedness Secured...................................22
34. Indemnity.........................................................23
35. Subordination of Property Manager's Lien..........................23
36. Compliance with Environmental Laws................................23
37. Miscellaneous.....................................................25
EXHIBIT A......... Legal Description
EXHIBIT B......... Permitted Exceptions
EXHIBIT C......... Insurance Requirements
MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND
FIXTURE FILING ("Mortgage") is made as of the 26th day of June, 2001, by MXL
INDUSTRIES, INC., a Delaware corporation ("Mortgagor"), to and for the benefit
of LASALLE BANK NATIONAL ASSOCIATION, a national banking association, its
successors and assigns ("Mortgagee"):
R E C I T A L S:
(A)......Mortgagee has agreed to loan to Mortgagor the principal amount
of One Million Two Hundred Fifty Thousand Dollars ($1,250,000) ("Loan"). The
Loan shall be evidenced by a certain Promissory Note of even date herewith (as
amended, restated or replaced from time to time, "Note") made by Mortgagor
payable to Mortgagee in the principal amount of the Loan and due on ___________,
2006 ("Maturity Date"), except as may be accelerated pursuant to the terms
hereof or of the Note or any other Loan Document (as defined in the Note).
(B)......A condition precedent to Mortgagee's extension of the Loan to
Mortgagor is the execution and delivery by Mortgagor of this Mortgage.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Mortgagor agrees as follows:
Mortgagor hereby mortgages, grants, assigns, remises, releases,
warrants and conveys to Mortgagee, its successors and assigns, and grants a
security interest in, the following described property, rights and interests
(referred to collectively herein as "Premises"), all of which property, rights
and interests are hereby pledged primarily and on a parity with the Real Estate
(as defined below) and not secondarily:
THE REAL ESTATE located in the State of Illinois and legally described
on Exhibit A attached hereto and made a part hereof ("Real Estate");
TOGETHER WITH all improvements of every nature whatsoever now or
hereafter situated on the Real Estate, and all fixtures of every nature
whatsoever now or hereafter owned by Mortgagor and on, or used in connection
with the Real Estate or the improvements thereon, or in connection with any
construction thereon, including all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to any of the foregoing
and all of the right, title and interest of Mortgagor in and to any such
fixtures together with the benefit of any deposits or payments now or hereafter
made on such fixtures by Mortgagor or on its behalf ("Improvements");
TOGETHER WITH all easements, rights of way, gores of real estate,
streets, ways, alleys, passages, sewer rights, waters, water courses, water
rights and powers, and all estates, rights, titles, interests, privileges,
liberties, tenements, hereditaments and appurtenances whatsoever, in any way now
or hereafter belonging, relating or appertaining to the Real Estate, and the
reversions, remainders, rents, issues and profits thereof, and all the estate,
right, title, interest, property, possession, claim and demand whatsoever, at
law as well as in equity, of Mortgagor of, in and to the same;
TOGETHER WITH all rents, revenues, issues, profits, proceeds, income,
royalties, accounts, accounts receivable, escrows, security deposits, impounds,
reserves, tax refunds and other rights to monies from the Premises, to be
applied against the Indebtedness (hereinafter defined); provided, however, that
Mortgagor, so long as no Event of Default (as hereinafter defined) has occurred
hereunder, may collect rent as it becomes due, but not more than one (1) month
in advance thereof without Mortgagee's consent, which shall not be unreasonably
withheld;
TOGETHER WITH all interest of Mortgagor in all leases now or hereafter
on the Premises, whether written or oral ("Leases"), together with all security
therefor and all monies payable thereunder, subject, however, to the conditional
permission hereinabove given to Mortgagor to collect the rentals under any such
Lease;
TOGETHER WITH all fixtures now or hereafter owned by Mortgagor and
forming a part of or used in connection with the Real Estate or the
Improvements, including, but without limitation, any and all air conditioners,
antennae, apparatus, awnings, basins, bathtubs, bidets, boilers, carpets,
coolers, dehumidifiers, disposals, doors, drapes, dryers, ducts, dynamos,
elevators, engines, equipment, escalators, fans, fittings, floor coverings,
furnaces, heaters, humidifiers, incinerators, lighting, ovens, pipes, plumbing,
pumps, radiators, screens, security systems, sinks, sprinklers, stokers,
toilets, ventilators, windows, wiring, and all renewals or replacements thereof
or articles in substitution therefor, whether or not the same are or shall be
attached to the Real Estate or the Improvements in any manner; it being mutually
agreed that all of the aforesaid property owned by Mortgagor and placed on the
Real Estate or the Improvements, so far as permitted by law, shall be deemed to
be fixtures, a part of the realty, and security for the Indebtedness (as
hereinafter defined); notwithstanding the agreement hereinabove expressed that
certain articles of property form a part of the realty covered by this Mortgage
and be appropriated to its use and deemed to be realty, to the extent that such
agreement and declaration may not be effective and that any of said articles may
constitute goods (as said term is used in the Uniform Commercial Code of the
State of Illinois ("Code"), this instrument shall constitute a security
agreement, creating a security interest in such goods, as collateral, in
Mortgagee, as a secured party, and Mortgagor, as Debtor, all in accordance with
the Code; and
TOGETHER WITH all of Mortgagor's interests in any service contracts to
which Mortgagor is or may become a party and which relate to the Premises;
TOGETHER WITH all proceeds of the foregoing, including, without
limitation, all judgments, awards of damages and settlements hereafter made
resulting from condemnation proceeds or the taking of the Premises or any
portion thereof under the power of eminent domain, any proceeds of any policies
of insurance, maintained with respect to the Premises or proceeds of any sale,
option or contract to sell the Premises or any portion thereof.
TO HAVE AND TO HOLD the Premises, unto Mortgagee, its successors and
assigns, forever, for the purposes and upon the uses herein set forth together
with all right to possession of the Premises after the occurrence of any Event
of Default; Mortgagee hereby RELEASING AND WAIVING all rights under and by
virtue of the homestead exemption laws of the State of Illinois.
FOR THE PURPOSE OF SECURING: (i) the payment of the Loan and all
interest, late charges, prepayment premium, reimbursement obligations, and other
indebtedness evidenced by or owing under the Note, any of the other Loan
Documents, together with any extensions, modifications, renewals or refinancings
of the foregoing; (ii) the performance and observance of the covenants,
conditions, agreements, representations, warranties and other liabilities and
obligations of Mortgagor or any other obligor to or benefiting Mortgagee which
are evidenced or secured by or otherwise provided in the Note, this Mortgage or
any of the other Loan Documents; and (iii) the reimbursement to Mortgagee of any
and all sums incurred, expended or advanced by Mortgagee pursuant to any term or
provision of or constituting additional indebtedness under or secured by this
Mortgage, any of the other Loan Documents, with interest thereon as provided
herein or therein (collectively, "Indebtedness").
IT IS FURTHER UNDERSTOOD AND AGREED THAT:
1........Title. Mortgagor represents, warrants and covenants that (a)
Mortgagor is the holder of the fee simple title to the Premises, free and clear
of all liens and encumbrances, except those liens and encumbrances in favor of
Mortgagee and as otherwise described on Exhibit B attached hereto ("Permitted
Exceptions"); and (b) Mortgagor has legal power and authority to mortgage and
convey the Premises.
2........Maintenance, Repair, Restoration, Prior Liens, Parking.
Mortgagor covenants that, so long as any portion of the Indebtedness remains
unpaid, Mortgagor will:
a. promptly repair, restore or rebuild any Improvements now or
hereafter on the Premises which may become damaged or be destroyed to a
condition substantially similar to the condition immediately prior to
such damage or destruction, 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', materialmen's or like liens or claims
or other liens or claims for lien (subject to Mortgagor's right to
contest liens as permitted by the terms of Paragraph 28 hereof);
c. pay when due the Indebtedness in accordance with the terms
of the Note and the other Loan Documents and duly perform and observe
all of the terms, covenants and conditions to be observed and performed
by Mortgagor under the Note, this Mortgage and the other Loan
Documents;
d. pay when due any indebtedness which may be secured by a
permitted lien or charge on the Premises on a parity with, superior to
or inferior to the lien hereof, and upon request exhibit satisfactory
evidence of the discharge of such lien to the Mortgagee (subject to
Mortgagor's right to contest liens as permitted by the terms of
Paragraph 28 hereof);
e. complete within a reasonable time any Improvements now or
at any time in the process of erection upon the Premises;
f. materially comply with all requirements of law, municipal
ordinances or restrictions and covenants of record with respect to the
Premises and the use thereof;
g. obtain and maintain in full force and effect, and abide by
and satisfy the material terms and conditions of, all material permits,
licenses, registrations and other authorizations with or granted by any
governmental authorities that may be required from time to time with
respect to the performance of its obligations under this Mortgage;
h. make no material alterations in the Premises or demolish
any portion of the Premises if alterations or demolition would impair
the structural integrity or adversely affect the value of the Premises,
or if the cost of such alterations or demolition will equal or exceed
the amount of the Loan, without Mortgagee's prior written consent, not
to be unreasonably withheld, except as required by law or municipal
ordinance;
i. suffer or permit no change in the use or general nature of
the occupancy of the Premises, without the Mortgagee's prior written
consent, not to be unreasonably withheld;
j. pay when due all operating costs of the Premises;
k. not initiate or acquiesce in any zoning reclassification
with respect to the Premises, without Mortgagee's prior written
consent, not to be unreasonably withheld;
l. provide and thereafter maintain adequate parking areas
within the Premises as may be required by law, ordinance or regulation
(whichever may be greater), 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 reasonably necessary or desirable for the use thereof;
and
m. cause the Premises at all times to be operated in material
compliance with all federal, state, local and municipal environmental,
health and safety laws, statutes, ordinances, rules and regulations.
3........Payment of Taxes and Assessments. 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 Mortgagor, if applicable to the Premises or any interest
therein, or the Indebtedness, or any obligation or agreement secured hereby,
subject to Mortgagor's right to contest the same, as provided by the terms
hereof; and Mortgagor will, upon written request, furnish to the Mortgagee
duplicate receipts therefor within ten (10) days after Mortgagee's request.
4........Tax Deposits. After an Event of Default, Mortgagor shall
deposit with Mortgagee, on the first day of each month until the Indebtedness is
fully paid, a sum equal to one-twelfth (1/12th) of 105% of the most recent
ascertainable annual Taxes on the Premises. If requested by Mortgagee, Mortgagor
shall also deposit with Mortgagee an amount of money which, together with the
aggregate of the monthly deposits to be made pursuant to the preceding sentence
as of one month prior to the date on which the next installment of annual Taxes
for the current calendar year become due, shall be sufficient to pay in full
such installment of annual Taxes, as estimated by Mortgagee. Such deposits shall
bear interest and are to be used for the payment of Taxes next due and payable
when they become due. Mortgagee shall, at its option, pay such Taxes when the
same become due and payable (upon submission of appropriate bills therefor from
Mortgagor) or shall release sufficient funds to Mortgagor for the payment
thereof. If the funds so deposited are insufficient to pay any such Taxes for
any year (or installments thereof, as applicable) when the same shall become due
and payable, Mortgagor shall, within ten (10) days after receipt of written
demand therefor, deposit additional funds as may be necessary to pay such Taxes
in full. If the funds so deposited exceed the amount required to pay such Taxes
for any year, the excess shall be applied toward subsequent deposits. Said
deposits shall be kept separate and apart from any other funds of Mortgagee.
Mortgagee, in making any payment hereby authorized relating to Taxes, may do so
according to any bill, statement or estimate procured from the appropriate
public office without inquiry into the accuracy of such bill, statement or
estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien
or title or claim thereof, so long as Mortgagor has not notified Mortgagee of
its dispute over or contest of the same and Mortgagor has complied with the
provisions of Paragraph 28 hereof.
5........Mortgagee's Interest In and Use of Deposits. Upon an Event of
Default, Mortgagee may, at its option, apply any monies at the time on deposit
pursuant to Paragraph 4 hereof to cure an Event of Default or to pay any of the
Indebtedness in such order and manner as Mortgagee may elect. If such deposits
are used to cure an Event of Default or pay any of the Indebtedness, Mortgagor
shall immediately, upon demand by Mortgagee, deposit with Mortgagee an amount
equal to the amount expended by Mortgagor from the deposits. When the
Indebtedness has been fully paid, any remaining deposits shall be returned to
Mortgagor. Such deposits are hereby pledged as additional security for the
Indebtedness and shall not be subject to the direction or control of Mortgagor.
Mortgagee shall not be liable for any failure to apply to the payment of Taxes
any amount so deposited unless Mortgagor, prior to an Event of Default, shall
have requested Mortgagee in writing to make application of such funds to the
payment of such amounts, accompanied by the bills for such Taxes. Mortgagee
shall not be liable for any act or omission taken in good faith or pursuant to
the instruction of any party.
6........Insurance.
a. Mortgagor shall at all times keep all buildings,
improvements, fixtures and articles of personal property now or
hereafter situated on the Premises insured against loss or damage by
fire and such other hazards as may reasonably be required by Mortgagee,
in accordance with the terms, coverages and provisions described on
Exhibit C attached hereto and made a part hereof, and such other
insurance as Mortgagee may from time to time reasonably require. Unless
Mortgagor provides Mortgagee evidence of the insurance coverages
required hereunder prior to the Closing Date (as that term is defined
in the Note) and from time to time thereafter within thirty (30) days
after Mortgagee's written request, Mortgagee may purchase insurance at
Mortgagor's expense to cover Mortgagee's interest in the Premises. The
insurance may, but need not, protect Mortgagor's interest. The
coverages that Mortgagee purchases may not pay any claim that Mortgagor
makes or any claim that is made against Mortgagor in connection with
the Premises. 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 Premises pursuant to this
Paragraph 6, Mortgagor will be responsible for the costs of such
insurance, including, without limitation, interest and any other
charges which Mortgagee may impose in connection with the placement of
the insurance, until the effective date of the cancellation or
expiration of the insurance. Said costs of the insurance may be added
to the Indebtedness. The cost of the insurance may be more than the
cost of insurance Mortgagor may be able to obtain on its own.
b. Mortgagor shall not take out separate insurance concurrent
in form or contributing in the event of loss with that required to be
maintained hereunder unless Mortgagee is included thereon as the loss
payee or an additional insured as applicable, under a standard mortgage
clause reasonably acceptable to Mortgagee and such separate insurance
is otherwise reasonably acceptable to Mortgagee.
c. In the event of loss, Mortgagor shall give prompt notice
thereof to Mortgagee, who, if such loss exceeds the lesser of ten
percent (10%) of the Indebtedness or Five Hundred Thousand Dollars
($500,000) ("Threshold"), shall have the sole and absolute right to
make proof of loss. If such loss exceeds the Threshold, or if such loss
is equal to or less than the Threshold and the conditions set forth in
clauses (i), (ii) and (iii) of the immediately succeeding sentence are
not satisfied, then Mortgagee, solely and directly shall receive such
payment for loss from each insurance company concerned. If and only if
(i) such loss is equal to or less than the Threshold, (ii) no Event of
Default or event that with the passage of time, the giving of notice or
both would constitute an Event of Default then exists, and (iii)
Mortgagee reasonably determines that the work required to complete the
repair or restoration of the Premises necessitated by such loss can be
completed no later than twelve (12) months prior to the Maturity Date,
then Mortgagee shall endorse to Mortgagor any such payment and
Mortgagor may collect such payment directly. Mortgagee shall have the
right, at its option and in its reasonable discretion, to apply any
insurance proceeds received by Mortgagee pursuant to the terms of this
paragraph, after the payment of all of Mortgagee's expenses, either (i)
on account of the Indebtedness, irrespective of whether such principal
balance is then due and payable, whereupon Mortgagee may declare the
whole of the balance of Indebtedness plus any Prepayment Premium (as
defined in the Note) to be due and payable, or (ii) to the restoration
or repair of the property damaged as provided in subparagraph d below;
provided, however, that Mortgagee hereby agrees to permit the
application of such proceeds to the restoration or repair of the
damaged property, subject to the provisions of subparagraph d below, if
(i) Mortgagee has received satisfactory evidence that such restoration
or repair shall be completed no later than the date that is twelve (12)
months prior to the Maturity Date, and (ii) no Event of Default, or
event that with the passage of time, the giving of notice or both would
constitute an Event of Default, then exists. If insurance proceeds are
made available to Mortgagor by Mortgagee as hereinafter provided,
Mortgagor shall repair, restore or rebuild the damaged or destroyed
portion of the Premises so that the condition and value of the Premises
are substantially the same as the condition and value of the Premises
prior to being damaged or destroyed. Any insurance proceeds applied on
account of the unpaid principal balance of the Note shall be subject to
the Prepayment Premium described in the Note. In the event of
foreclosure of this Mortgage, all right, title and interest of
Mortgagor in and to any insurance policies then in force shall pass to
the purchaser at the foreclosure sale.
d. If insurance proceeds are made available by Mortgagee to
Mortgagor, Mortgagor shall comply with the following conditions:
i. Before commencing to repair, restore or rebuild
following damage to, or destruction of, all or a portion of
the Premises, whether by fire or other casualty, Mortgagor
shall obtain from Mortgagee its approval, not to be
unreasonably withheld, of all site and building plans and
specifications pertaining to such repair, restoration or
rebuilding.
ii. Prior to each payment or application of any
insurance proceeds to the repair or restoration of the
improvements upon the Premises to the extent permitted in
subparagraph c above (which payment or application may be
made, at Mortgagee's option, through an escrow, the terms and
conditions of which are reasonably satisfactory to Mortgagee
and the cost of which is to be borne by Mortgagor), Mortgagee
shall be satisfied as to the following:
(a) no Event of Default or any event which, with the
passage of time or giving of notice would constitute an Event
of Default, has occurred and is continuing;
(b) either such Improvements have been fully
restored, or the expenditure of money as may be received from
such insurance proceeds will be sufficient to repair, restore
or rebuild the Premises, free and clear of all liens, claims
and encumbrances, except the lien of this Mortgage and the
Permitted Exceptions, or, if such insurance proceeds shall be
insufficient to repair, restore and rebuild the Premises,
Mortgagor has deposited with Mortgagee such amount of money
which, together with the insurance proceeds shall be
sufficient to restore, repair and rebuild the Premises; and
(c) prior to each disbursement of any such proceeds,
Mortgagee shall be furnished with a statement of Mortgagee's
architect (the cost of which shall be borne by Mortgagor),
certifying the extent of the repair and restoration completed
to the date thereof, and that such repairs, restoration, and
rebuilding have been performed to date in substantial
conformity with the plans and specifications approved by
Mortgagee and with all statutes, regulations or ordinances
(including building and zoning ordinances) affecting the
Premises; and Mortgagee shall be furnished with appropriate
evidence of payment for labor or materials furnished to the
Premises, and total or partial lien waivers substantiating
such payments.
iii. If Mortgagor shall fail to restore, repair or rebuild the
Improvements within a time deemed satisfactory by Mortgagee, then
Mortgagee, at its option, may (a) commence and perform all necessary
acts to restore, repair or rebuild the said Improvements for or on
behalf of Mortgagor, or (b) declare an Event of Default. If insurance
proceeds shall exceed the amount necessary to complete the repair,
restoration or rebuilding of the Improvements, and no Event of Default
has occurred, such excess shall be paid to Mortgagor.
7........Condemnation. If all or any part of the Premises are damaged,
taken or acquired, either temporarily or permanently, in any condemnation
proceeding, or by exercise of the right of eminent domain, the amount of any
award or other payment for such taking or damages made in consideration thereof,
to the extent of the full amount of the remaining unpaid Indebtedness, is hereby
assigned to Mortgagee, who is empowered to collect and receive the same and to
give proper receipts therefor in the name of Mortgagor and the same shall be
paid forthwith to Mortgagee. Such award or monies shall be applied on account of
the Indebtedness, irrespective of whether such Indebtedness is then due and
payable and, at any time from and after the taking Mortgagee may declare the
whole of the balance of the Indebtedness plus any Prepayment Premium to be due
and payable, and the excess, if any, shall be paid to Mortgagor. Notwithstanding
the provisions of this paragraph to the contrary, if any condemnation or taking
of less than the entire Premises occurs and provided that no Event of Default
and no event or circumstance which with the passage of time, the giving of
notice or both would constitute an Event of Default then exists, and if such
partial condemnation, in the reasonable discretion of Mortgagee, has no material
adverse effect on the operation or value of the Premises, then the award or
payment for such taking or consideration for damages resulting therefrom may be
collected and received by Mortgagor, and Mortgagee hereby agrees that in such
event it shall not declare the Indebtedness to be due and payable, if it is not
otherwise then due and payable.
8........Stamp Tax. If, by the laws of the United States of America, or
of any state or political subdivision having jurisdiction over Mortgagor, any
tax is due or becomes due in respect of the execution and delivery of this
Mortgage, the Note or any of the other Loan Documents, Mortgagor shall pay such
tax in the manner required by any such law. Mortgagor further agrees to
reimburse Mortgagee for any sums which Mortgagee may expend by reason of the
imposition of any such tax. Notwithstanding the foregoing, Mortgagor shall not
be required to pay any income or franchise taxes of Mortgagee.
9........Lease Assignment. Mortgagor acknowledges that, concurrently
herewith, Mortgagor has executed and delivered to Mortgagee, as additional
security for the repayment of the Loan, an Assignment of Rents and Leases
("Assignment") pursuant to which Mortgagor has assigned to Mortgagee interests
in the leases of the Premises and the rents and income from the Premises. All of
the provisions of the Assignment are hereby incorporated herein as if fully set
forth at length in the text of this Mortgage. Mortgagor agrees to abide by all
of the provisions of the Assignment.
10.......Effect of Extensions of Time and Other Changes. If the payment
of the Indebtedness or any part thereof is extended or varied, if any part of
any security for the payment of the Indebtedness is released, if the rate of
interest charged under the Note is changed or if the time for payment thereof is
extended or varied, all persons now or at any time hereafter liable therefor, or
interested in the Premises or having an interest in Mortgagor, shall be held to
assent to such extension, variation, release or change and their liability and
the lien and all of the provisions hereof shall continue in full force, any
right of recourse against all such persons being expressly reserved by
Mortgagee, notwithstanding such extension, variation, release or change.
11.......Effect of Changes in Laws Regarding Taxation. If any law is
enacted after the date hereof requiring (a) the deduction of any lien on the
Premises from the value thereof for the purpose of taxation or (b) the
imposition upon Mortgagee of the payment of the whole or any part of the Taxes,
charges or liens herein required to be paid by Mortgagor, or (c) a change in the
method of taxation of mortgages or debts secured by mortgages or Mortgagee's
interest in the Premises, or the manner of collection of taxes, so as to affect
this Mortgage or the Indebtedness or the holders thereof, then Mortgagor, upon
demand by Mortgagee, shall pay such Taxes or charges, or reimburse Mortgagee
therefor; provided, however, that Mortgagor shall not be deemed to be required
to pay any income or franchise taxes of Mortgagee. Notwithstanding the
foregoing, if in the opinion of counsel for Mortgagee it is or may be unlawful
to require Mortgagor to make such payment or the making of such payment might
result in the imposition of interest beyond the maximum amount permitted by law,
then Mortgagee may declare all of the Indebtedness to be immediately due and
payable.
12.......Mortgagee's Performance of Defaulted Acts and Expenses
Incurred by Mortgagee. If an Event of Default has occurred, Mortgagee may, but
need not, make any payment or perform any act herein required of Mortgagor in
any form and manner deemed expedient by Mortgagee, and may, but need not, 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 consent to any tax or assessment or cure any default of
Mortgagor in any lease of the Premises. All monies paid for any of the purposes
herein authorized and all expenses paid or incurred in connection therewith,
including reasonable attorneys' fees, and any other monies advanced by Mortgagee
in regard to any tax referred to in Paragraph 8 above or to protect the Premises
or the lien hereof, shall be so much additional Indebtedness, and shall become
immediately due and payable by Mortgagor to Mortgagee, upon demand, and with
interest thereon accruing from the date of such demand until paid at the Default
Rate (as defined in the Note) then in effect. In addition to the foregoing, any
costs, expenses and fees, including reasonable attorneys' fees, incurred by
Mortgagee in connection with (a) sustaining the lien of this Mortgage or its
priority, (b) protecting or enforcing any of Mortgagee's rights hereunder, (c)
recovering any Indebtedness, (d) any litigation or proceedings affecting the
Note, this Mortgage, any of the other Loan Documents or the Premises, including
without limitation, bankruptcy and probate proceedings, or (e) preparing for the
commencement, defense or participation in any threatened litigation or
proceedings affecting the Note, this Mortgage, any of the other Loan Documents
or the Premises, shall be so much additional Indebtedness, and shall become
immediately due and payable by Mortgagor to Mortgagee, upon demand, and with
interest thereon accruing from the date of such demand until paid at the Default
Rate. The interest accruing under this Paragraph 12 shall be immediately due and
payable by Mortgagor to Mortgagee, and shall be additional Indebtedness
evidenced by the Note and secured by this Mortgage. Mortgagee's failure to act
shall never be considered as a waiver of any right accruing to Mortgagee on
account of any Event of Default. Should any amount paid out or advanced by
Mortgagee hereunder, or pursuant to any agreement executed by Mortgagor in
connection with the Loan, be used directly or indirectly to pay off, discharge
or satisfy, in whole or in part, any lien or encumbrance upon the Premises or
any part thereof, then 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.
13.......Security Agreement. Mortgagor and Mortgagee agree that this
Mortgage shall constitute a Security Agreement within the meaning of the Code
with respect to (a) all sums at any time on deposit for the benefit of Mortgagor
or held by the Mortgagee (whether deposited by or on behalf of Mortgagor or
anyone else) pursuant to any of the provisions of this Mortgage or the other
Loan Documents, and (b) with respect to any personal property included in the
granting clauses of this Mortgage, which personal property may not be deemed to
be affixed to the Premises or may not constitute a "fixture" (within the meaning
of Section 9-313 of the Code) (which property is hereinafter referred to as
"Personal Property"), and all replacements of, substitutions for, additions to,
and the proceeds thereof (all of said Personal Property and the replacements,
substitutions and additions thereto and the proceeds thereof being sometimes
hereinafter collectively referred to as "Collateral"), and that a security
interest in and to the Collateral is hereby granted to the Mortgagee, and the
Collateral and all of Mortgagor's right, title and interest therein are hereby
assigned to Mortgagee, all to secure payment of the Indebtedness. Mortgagee
acknowledges that its lien on the Collateral is subject to the terms and
conditions set forth in that certain Intercreditor Agreement between Mortgagee
and Fleet National Bank ("Fleet") dated ___________, 2001. All of the provisions
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 Paragraph shall not limit the applicability of any
other provision of this Mortgage but shall be in addition thereto:
a. Mortgagor (being the Debtor as that term is used in the
Code) is and will be the true and lawful owner of the Collateral,
subject to no liens, charges or encumbrances other than (i) the lien
hereof; (ii) with respect to Collateral only, the lien created by that
certain Amended and Restated Credit Agreement dated as of June 15,
1998, as amended by Third Amendment to Amended and Restated Credit
Agreement dated June 15, 2001 by and among GP Strategies Corporation,
General Physics Canada Ltd., various lenders and Fleet, as successor by
merger to Fleet Bank, N.A. (as may be further amended, the "Senior
Credit Facility"); and (iii) other liens and encumbrances benefiting
Mortgagee and no other party, and liens and encumbrances, if any,
expressly permitted by the other Loan Documents.
b. The Collateral is to be used by Mortgagor solely for
business purposes.
c. The Collateral will be kept at the Real Estate and, except
for Obsolete Collateral (as hereinafter defined), will not be removed
therefrom without the consent of Mortgagee (being the Secured Party as
that term is used in the Code). The Collateral may be affixed to the
Real Estate but will not be affixed to any other real estate.
d. The only persons having any interest in the Premises are
Mortgagor, Mortgagee and holders of interests, if any, expressly
permitted hereby.
e. No Financing Statement (other than Financing Statements
showing Mortgagee as the sole secured party, or with respect to liens
or encumbrances, if any, expressly permitted hereby, including any
financing statements covering any Personal Property which secures the
Senior Credit Facility ("Fleet Collateral")) covering any of the
Collateral or any proceeds thereof is on file in any public office
except pursuant hereto; and Mortgagor, at its own cost and expense,
upon demand, will furnish to Mortgagee such further information and
will execute and deliver to Mortgagee such financing statements and
other documents in form satisfactory to Mortgagee and will do all such
acts as Mortgagee may request at any time or from time to time or as
may be necessary or appropriate to establish and maintain a perfected
security interest in the Collateral as security for the Indebtedness,
subject to no other liens or encumbrances, other than liens or
encumbrances benefiting Mortgagee and no other party and liens and
encumbrances (if any) expressly permitted hereby; and Mortgagor will
pay the cost of filing or recording such financing statements or other
documents, and this instrument, in all public offices wherever filing
or recording is deemed by Mortgagee to be desirable.
f. Upon an Event of Default hereunder, 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, so far as
Mortgagor can give authority therefor, with or without judicial
process, may 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 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 Mortgagor's right of
redemption in satisfaction of Mortgagor's obligations, as provided in
the Code. Mortgagee may render the Collateral unusable without removal
and may dispose of the Collateral on the Premises. Mortgagee may
require Mortgagor to assemble the Collateral and make it available to
Mortgagee for its possession at a place to be designated by Mortgagee
which is reasonably convenient to both parties. Mortgagee will give
Mortgagor at least ten (10) days' notice of the time and place of any
public sale of the Collateral 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 United States mail or equivalent, postage prepaid,
to the address of Mortgagor hereinafter set forth at least ten (10)
days before the time of the sale or disposition. Mortgagee may buy at
any public sale. Mortgagee may buy at private sale if the Collateral is
of a type customarily sold in a recognized market or is of a type which
is the subject of widely distributed standard price quotations. Any
such sale may be held in conjunction with any foreclosure sale of the
Premises. If Mortgagee so elects, the Premises and the Collateral may
be sold as one lot. The net proceeds realized upon any such
disposition, after deduction for the expenses of retaking, holding,
preparing for sale, selling and the reasonable attorneys' fees and
legal expenses incurred by Mortgagee, shall be applied against the
Indebtedness in such order or manner as Mortgagee shall select.
Mortgagee will account to Mortgagor for any surplus realized on such
disposition.
g. The terms and provisions contained in this Paragraph 13,
unless the context otherwise requires, shall have the meanings and be
construed as provided in the Code.
h. This Mortgage is intended to be a financing statement
within the purview of Section 9-402(6) of the Code with respect to the
Collateral and the goods described herein, which goods are or may
become fixtures relating to the Premises. The addresses of Mortgagor
(Debtor) and Mortgagee (Secured Party) are hereinbelow set forth. This
Mortgage is to be filed for recording with the Recorder of Deeds of the
county or counties where the Premises are located. Mortgagor is the
record owner of the Premises.
i. To the extent permitted by applicable law, the security
interest created hereby is specifically intended to cover all Leases
between Mortgagor or its agents as lessor, and various tenants named
therein, as lessee, including all extended terms and all extensions and
renewals of the terms thereof, as well as any amendments to or
replacement of said Leases, together with all of the right, title and
interest of Mortgagor, as lessor thereunder.
j. Address of Mortgager (Debtor):
MXL Industries, Inc.
2300 Wisconsin Street
Downers Grove, Illinois 60515
Address of Mortgagee (Secured Party):
LaSalle Bank National Association
135 South LaSalle Street
Suite 1250
Chicago, Illinois 60603
14.......Restrictions on Transfer.
a. Mortgagor, without the prior written consent of Mortgagee,
not to be unreasonably withheld, shall not effect, suffer or permit any
Prohibited Transfer (as defined herein). Any conveyance, sale,
assignment, transfer, lien, pledge, mortgage, security interest or
other encumbrance or alienation (or any agreement to do any of the
foregoing) of any of the following properties or interests shall
constitute a "Prohibited Transfer":
i. The Premises or any part thereof or interest
therein, excepting only (a) sales or other dispositions of
Collateral (herein called "Obsolete Collateral") no longer
useful in connection with the operation of the Premises,
provided that prior to the sale or other disposition thereof,
such Obsolete Collateral has been replaced by Collateral of at
least equal value and utility which is subject to the lien
hereof with the same priority as with respect to the Obsolete
Collateral and (b) transfers of Fleet Collateral pursuant to
the Senior Credit Facility; or
ii. The majority or controlling interest of shares of
capital stock of a corporate Mortgagor, a corporation which is
a general partner or managing member/manager in a partnership
or limited liability company Mortgagor, or a corporation which
is the owner of substantially all of the capital stock of any
corporation described in this subparagraph (other than the
shares of capital stock of a corporate trustee or a
corporation whose stock is publicly traded on a national
securities exchange or on the National Association of
Securities Dealers' Automated Quotation System).
in each case whether any such conveyance, sale, assignment, transfer,
lien, pledge, mortgage, security interest, encumbrance or alienation is
effected directly, indirectly (including the nominee agreement),
voluntarily or involuntarily, by operation of law or otherwise;
provided, however, that the foregoing provisions of this Paragraph 14
shall not apply (i) to liens securing the Indebtedness, (ii) to the
lien of current taxes and assessments not in default, (iii) to any
transfers of the Premises, or part thereof, or interest therein, or any
beneficial interests, or shares of stock or partnership or joint
venture interests, as the case may be, 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 or
personal representatives, or (iv) to leases permitted by the terms of
the Loan Documents, if any or (v) to the pledge of all of the issued
and outstanding stock of Mortgagor to Fleet as security for the Senior
Credit Facility.
b. In determining whether or not to make the Loan, Mortgagee
evaluated the background and experience of Mortgagor and its
partners/members/officers in owning and operating property such as the
Premises, found it acceptable and relied and continues to rely upon
same as the means of maintaining the value of the Premises which is
Mortgagee's security for the Note. Mortgagor and its
partners/members/officers are well experienced in borrowing money and
owning and operating property such as the Premises, were ably
represented by a licensed attorney at law in the negotiation and
documentation of the Loan and bargained at arm's length and without
duress of any kind for all of the terms and conditions of the Loan,
including this provision. Mortgagor recognizes that Mortgagee is
entitled to keep its loan portfolio at current interest rates by either
making new loans at such rates or collecting assumption fees and/or
increasing the interest rate on a loan, the security for which is
purchased by a party other than the original Mortgagor. Mortgagor
further recognizes that any secondary junior financing placed upon the
Premises (a) may divert funds which would otherwise be used to pay the
Note; (b) could result in acceleration and foreclosure by any such
junior encumbrancer which would force Mortgagee to take measures and
incur expenses to protect its security; (c) would detract from the
value of the Premises should Mortgagee come into possession thereof
with the intention of selling same; and (d) would impair Mortgagee's
right to accept a deed in lieu of foreclosure, as a foreclosure by
Mortgagee would be necessary to clear the title to the Premises. In
accordance with the foregoing and for the purposes of (i) protecting
Mortgagee's security, both of repayment and of value of the Premises;
(ii) giving Mortgagee the full benefit of its bargain and contract with
Mortgagor; (iii) allowing Mortgagee to raise the interest rate and
collect assumption fees; and (iv) keeping the Premises free of
subordinate financing liens, Mortgagor agree that if this Paragraph 14
is deemed a restraint on alienation, that it is a reasonable one.
15.......Intentionally omitted.
16.......Events of Default; Acceleration. Each of the following shall
constitute an "Event of Default" for purposes of this Mortgage:
a. Mortgagor fails to pay (i) any installment of principal or
interest payable pursuant to the Note on the date when due, or (ii) any
other amount payable to Lender under the Note, this Mortgage or any of
the other Loan Documents within five (5) days after the date when any
such payment is due in accordance with the terms hereof or thereof;
b. Mortgagor fails to perform or cause to be performed any
other obligation or observe any other condition, covenant, term,
agreement or provision required to be performed or observed by
Mortgagor under the Note, this Mortgage or any of the other Loan
Documents; provided, however, that if such failure by its nature can be
cured, then so long as the continued operation and safety of the
Premises, and the priority, validity and enforceability of the liens
created by the Mortgage or any of the other Loan Documents and the
value of the Premises are not impaired, threatened or jeopardized, then
Mortgagor shall have a period ("Cure Period") of thirty (30) days after
Mortgagor obtains actual knowledge of such failure or receives written
notice of such failure to cure the same and an Event of Default shall
not be deemed to exist during the Cure Period, provided further that if
Mortgagor commences to cure such failure during the Cure Period and is
diligently and in good faith attempting to effect such cure, the Cure
Period shall be extended for thirty (30) additional days, but in no
event shall the Cure Period be longer than sixty (60) days in the
aggregate;
c. the existence of any inaccuracy or untruth in any material
respect in any representation or warranty contained in this Mortgage or
any of the other Loan Documents or of any statement or certification as
to facts delivered to Mortgagee by Mortgagor or any guarantor of the
Note;
d. Mortgagor or any guarantor of the Note files a voluntary
petition in bankruptcy or is adjudicated a bankrupt or insolvent or
files any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief
under the present or any future federal, state, or other statute or
law, or seeks or consents to or acquiesces in the appointment of any
trustee, receiver or similar officer of Mortgagor or of all or any
substantial part of the property of Mortgagor or any guarantor of the
Note or any of the Premises or all or a substantial part of the assets
of Mortgagor or any guarantor of the Note are attached, seized,
subjected to a writ or distress warrant or are levied upon unless the
same is released or located within ninety (90) days;
e. the commencement of any involuntary petition in bankruptcy
against Mortgagor or any guarantor of the Note or the institution
against Mortgagor or any guarantor of the Note of any reorganization,
arrangement, composition, readjustment, dissolution, liquidation or
similar proceedings under any present or future federal, state or other
statute or law, or the appointment of a receiver, trustee or similar
officer for all or any substantial part of the property of Mortgagor or
any guarantor of the Note which shall remain undismissed or
undischarged for a period of ninety (90) days;
f. the dissolution, termination or merger of Mortgagor or any
guarantor of the Note;
g. the occurrence of a Prohibited Transfer;
h. the occurrence of an "Event of Default" under the Note or
any of the other Loan Documents; or
i. the occurrence of a default in payment under, or the
acceleration of indebtedness created by, the Senior Credit Facility, or
any other loan documents evidencing and securing such indebtedness.
If an Event of Default occurs, Mortgagee may, at its option, declare
the whole of the Indebtedness to be immediately due and payable without further
notice to Mortgagor, with interest thereon accruing from the date of such Event
of Default until paid at the Default Rate.
17.......Foreclosure; Expense of Litigation.
a. When all or any part of the Indebtedness shall become due,
whether by acceleration or otherwise, Mortgagee shall have the right to
foreclose the lien hereof for such Indebtedness or part thereof and/or
exercise any right, power or remedy provided in this Mortgage or any of
the other Loan Documents in accordance with the Illinois Mortgage
Foreclosure Act (Chapter 735, Sections 5/15-1101 et seq., Illinois
Compiled Statutes) (as may be amended from time to time, the "Act"). In
the event of a foreclosure sale, Mortgagee is hereby authorized,
without the consent of Mortgagor, to assign any and all insurance
policies to the purchaser at such sale or to take such other steps as
Mortgagee may deem advisable to cause the interest of such purchaser to
be protected by any of such insurance policies.
b. In any suit to foreclose the lien hereof, there shall be
allowed and included as additional indebtedness in the decree for sale
all expenditures and expenses which may be paid or incurred by or on
behalf of 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 assurances with respect to the title as Mortgagee may
deem reasonably necessary either to prosecute such suit or to evidence
to bidders at any sale which may be had pursuant to such decree the
true condition of the title to or the value of the Premises. All
expenditures and expenses of the nature mentioned in this paragraph and
such other expenses and fees as may be incurred in the enforcement of
Mortgagor's obligations hereunder, the protection of said Premises and
the maintenance of the lien of this Mortgage, including the reasonable
fees of any attorney employed by Mortgagee in any litigation or
proceeding affecting this Mortgage, the Note, or the Premises,
including probate and bankruptcy proceedings, or in preparations for
the commencement or defense of any proceeding or threatened suit or
proceeding shall be immediately due and payable by Mortgagor, with
interest thereon until paid at the Default Rate and shall be secured by
this Mortgage.
18.......Application of Proceeds of Foreclosure Sale. The proceeds of
any foreclosure sale of the Premises shall be distributed and applied in
accordance with the Act and, unless otherwise specified therein, in such order
as Mortgagee may determine in its sole and absolute discretion.
19.......Appointment of Receiver. Upon or at any time after the filing
of a complaint to foreclose this Mortgage, the court in which such complaint is
filed shall, upon petition by Mortgagee, appoint a receiver for the Premises in
accordance with the Act. Such appointment may be made either before or after
sale, without notice, without regard to the solvency or insolvency of Mortgagor
at the time of application for such receiver and without regard to the value of
the Premises or whether the same shall be then occupied as a homestead or not
and Mortgagee hereunder or any other holder of the Note may be appointed as such
receiver. Such receiver shall have power to collect the rents, issues and
profits of the Premises (i) during the pendency of such foreclosure suit, (ii)
in case of a sale and a deficiency, during the full statutory period of
redemption, whether there be redemption or not, and (iii) during any further
times when Mortgagor, but for the intervention of such receiver, would be
entitled to collect such rents, issues and profits. Such receiver also shall
have all other powers and rights that may be necessary or are usual in such
cases for the protection, possession, control, management and operation of the
Premises during said period, including, to the extent permitted by law, the
right to lease all or any portion of the Premises for a term that extends beyond
the time of such receiver's possession without obtaining prior court approval of
such lease. The court from time to time may authorize the application of the net
income received by the receiver in payment of (a) the Indebtedness, or 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 prior to foreclosure sale, and (b) any deficiency upon
a sale and deficiency.
20.......Mortgagee's Right of Possession in Case of Default. At any
time after an Event of Default has occurred, Mortgagor shall, upon demand of
Mortgagee, surrender to Mortgagee possession of the Premises. Mortgagee, in its
discretion, may, with process of law, enter upon and take and maintain
possession of all or any part of the Premises, together with all documents,
books, records, papers and accounts relating thereto, and may exclude Mortgagor
and its employees, agents or servants therefrom, and Mortgagee may then hold,
operate, manage and control the Premises, either personally or by its agents.
Mortgagee shall have full power to use such measures, legal or equitable, as in
its discretion 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. Without limiting the generality of the foregoing, Mortgagee
shall have full power to:
a. cancel or terminate any lease or sublease for any cause or
on any ground which would entitle Mortgagor to cancel the same;
b. elect to disaffirm any lease or sublease which is then
subordinate to the lien hereof;
c. extend or modify any then existing leases and to enter into
new leases, which extensions, modifications and leases may provide for
terms to expire, or for options to lessees to extend or renew terms to
expire, beyond the Maturity Date 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 Indebtedness, satisfaction of any foreclosure judgment, or
issuance of any certificate of sale or deed to any purchaser;
d. make any repairs, renewals, replacements, alterations,
additions, betterments and improvements to the Premises as Mortgagee
deems are necessary;
e. insure and reinsure the Premises and all risks incidental
to Mortgagee's possession, operation and management thereof; and
f. receive all of such avails, rents, issues and profits.
21.......Application of Income Received by Mortgagee. Mortgagee, in the
exercise of the rights and powers hereinabove conferred upon it, shall have full
power to use and apply the avails, rents, issues and profits of the Premises to
the payment of or on account of the following, in such order as Mortgagee may
determine:
a. to the payment of the operating expenses of the Premises,
including cost of management and leasing thereof (which shall include
compensation to Mortgagee and its agent or agents, if management be
delegated to an agent or agents, and shall also include lease
commissions and other compensation and expenses of seeking and
procuring tenants and entering into leases), established claims for
damages, if any, and premiums on insurance hereinabove authorized;
b. to the payment of taxes and special assessments now due or
which may hereafter become due on the Premises; and
c. to the payment of any Indebtedness, including any
deficiency which may result from any foreclosure sale.
22.......Compliance with Illinois Mortgage Foreclosure Law.
a. If any provision in this Mortgage shall be inconsistent
with any provision of the Act, 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.
b. If any provision of this Mortgage shall grant to Mortgagee
(including Mortgagee acting as a mortgagee-in-possession) or a receiver
appointed pursuant to the provisions of Paragraph 19 of this Mortgage
any powers, rights or remedies prior to, upon or following the
occurrence of an Event of Default which are more limited than the
powers, rights or remedies that would otherwise be vested in Mortgagee
or in such receiver under the Act in the absence of said provision,
Mortgagee and such receiver shall be vested with the powers, rights and
remedies granted in the Act to the full extent permitted by law.
c. Without limiting the generality of the foregoing, all
expenses incurred by Mortgagee which are of the type referred to in
Section 5/15-1510 or 5/15-1512 of the Act, whether incurred before or
after any decree or judgment of foreclosure, and whether or not
enumerated in Paragraph 12, 17 or 29 of this Mortgage, shall be added
to the Indebtedness and/or by the judgment of foreclosure.
23.......Rights Cumulative. Each right, power and remedy herein
conferred upon Mortgagee is cumulative and in addition to every other right,
power or remedy, express or implied, given now or hereafter existing under any
of the Loan Documents or 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 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 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 Event of Default or acquiescence therein.
24.......Mortgagee's Right of Inspection. Mortgagee and its
representatives shall have the right to inspect the Premises and the books and
records with respect thereto at all reasonable times upon not less than
forty-eight (48) hours prior notice to Mortgagor, and access thereto, subject to
the rights of tenants in possession, shall be permitted for that purpose.
25.......Release Upon Payment and Discharge of Mortgagor's Obligations.
Mortgagee shall release this Mortgage and all liens hereof and created by this
Mortgage, by proper instrument in recordable form upon payment and discharge of
all Indebtedness, including payment of all reasonable expenses incurred by
Mortgagee in connection with the execution of such release.
26.......Notices. Any notices, communications and waivers under this
Mortgage shall be in writing and shall be (i) delivered in person, (ii) mailed,
postage prepaid, either by registered or certified mail, return receipt
requested, or (iii) by overnight express carrier, addressed in each case as
follows:
To Mortgagee: LaSalle Bank National Association
Suite 1225
135 South LaSalle Street
Chicago, Illinois 60603
Attn: Manager, Real Estate Administration
With a copy to: LaSalle Bank National Association
Suite 1225
135 South LaSalle Street
Chicago, Illinois 60603
Attn: Group Head, Commercial Real Estate
and: Bell, Boyd & Lloyd LLC
70 West Madison
Suite 3300
Chicago, Illinois 60602
Attn: Terrence E. Budny, Esq.
To Mortgagor: MXL Industries, Inc.
2300 Wisconsin Street
Downers Grove, Illinois 60515
With copy to: GP Strategies Corporation
9 West 57th Street
Suite 4170
New York, New York 10019
Attn: Andrea Kantor, Esq.
and: Duane, Morris
380 Lexington Avenue
New York, New York 10168
Attn: Robert Hasday, Esq.
or to any other address as to any of the parties hereto, as such party shall
designate in a written notice to the other party hereto. All notices sent
pursuant to the terms of this Paragraph shall be deemed received (i) if
personally delivered, then on the date of delivery, (ii) if sent by overnight,
express carrier, then on the next federal banking day immediately following the
day sent, or (iii) if sent by registered or certified mail, then on the earlier
of the third federal banking day following the day sent or when actually
received.
27. Waiver of Rights. The Mortgagor hereby covenants and agrees that it
will not at any time insist upon or plead, or in any manner 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 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
marshalling thereof, upon foreclosure sale or other enforcement hereof; and
without limiting the foregoing:
a. The Mortgagor hereby expressly waives any and all rights of
reinstatement and redemption, if any, under any order or decree of
foreclosure of this Mortgage, on its own behalf and on behalf of each
and every person, it being the intent hereof that any and all such
rights of reinstatement and 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 Illinois Compiled Statutes 735
ILCS 5/15 - 1601 or other applicable law or replacement statutes;
b. The Mortgagor will not invoke or utilize any such law or
laws or otherwise hinder, delay or impede the execution of any right,
power remedy herein or otherwise granted or delegated to the Mortgagee
but will suffer and permit the execution of every such right, power and
remedy as though no such law or laws had been made or enacted; and
c. If the Mortgagor is a trustee, Mortgagor represents that
the provisions of this paragraph (including the waiver of reinstatement
and 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.
28. 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 Liens 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 either pay under protest or deposit with
Mortgagee the full amount (herein called "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, at its
option, 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
reasonably 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
reasonable expenses incurred, in so doing, including fees and expenses
of Mortgagee's counsel (all of which shall constitute so much
additional Indebtedness bearing interest at the Loan Rate until paid,
and payable upon demand);
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 reasonable 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 bearing
interest at the Default Rate until paid, and payable upon demand; and
provided further that Mortgagee may in such case use and apply monies
deposited as provided in subsection (b) above and may demand payment
upon any bond or title indemnity furnished as aforesaid.
29. Expenses Relating to Note and Mortgage.
a. Mortgagor will pay all reasonable expenses, charges, costs
and fees relating to the Loan or necessitated by the terms of the Note,
this Mortgage or any of the other Loan Documents, including without
limitation, Mortgagee's reasonable attorneys' fees in connection with
the negotiation, documentation, administration, servicing and
enforcement of the Note, this Mortgage and the other Loan Documents,
all filing, registration and recording fees, all other expenses
incident to the execution and acknowledgment of this Mortgage and all
federal, state, county and municipal taxes, and other taxes (provided
Mortgagor shall not be required to pay any income or franchise taxes of
Mortgagee), duties, imposts, assessments and charges arising out of or
in connection with the execution and delivery of the Note and this
Mortgage. Mortgagor recognizes that, during the term of this Mortgage,
Mortgagee:
i. May be involved in court or administrative
proceedings, including, without restricting the foregoing,
foreclosure, probate, bankruptcy, creditors' arrangements,
insolvency, housing authority and pollution control
proceedings of any kind, to which Mortgagee shall be a party
by reason of the Loan Documents or in which the Loan Documents
or the Premises are involved directly or indirectly;
ii. May make preparations following the occurrence of
an Event of Default hereunder for the commencement of any suit
for the foreclosure hereof, which may or may not be actually
commenced;
iii. May make preparations following the occurrence
of an Event of Default hereunder for, and do work in
connection with, Mortgagee's taking possession of and managing
the Premises, which event may or may not actually occur;
iv. May make preparations for and commence other
private or public actions to remedy an Event of Default
hereunder, which other actions may or may not be actually
commenced;
v. May enter into negotiations with Mortgagor or any
of its agents, employees or attorneys in connection with the
existence or curing of any Event of Default hereunder, the
sale of the Premises, the assumption of liability for any of
the Indebtedness or the transfer of the Premises in lieu of
foreclosure; or
vi. May enter into negotiations with Mortgagor or any
of its agents, employees or attorneys pertaining to
Mortgagee's approval of actions taken or proposed to be taken
by Mortgagor which approval is required by the terms of this
Mortgage.
b. All expenses, charges, costs and fees described in this
Paragraph 29 shall be so much additional Indebtedness, shall bear
interest from the date so incurred until paid at the Default Rate and
shall be paid, together with said interest, by Mortgagor forthwith upon
demand.
30. Financial Statements. Mortgagor represents and warrants that the
financial statements for Mortgagor and the Premises previously submitted to
Mortgagee are true, complete and correct in all material respects, disclose all
actual and contingent liabilities of Mortgagor or relating to the Premises and
do not contain any untrue statement of a material fact or omit to state a fact
material to such financial statements. No material adverse change has occurred
in the financial condition of Mortgagor or the Premises from the dates of said
financial statements until the date hereof. Mortgagor shall furnish to Mortgagee
such financial information regarding Mortgagor, its constituent partners or
members, as the case may be, the Premises and any guarantor of the Note as
Mortgagee may from time to time reasonably request, which shall include, without
any further request therefor, (i) quarterly financial statements for the
Premises including a balance sheet, statement of income and rent roll for the
Premises (if applicable), no later than forty-five (45) days after the end of
each calendar quarter of each fiscal year, all in form, scope and detail
reasonably satisfactory to Mortgagee and certified by the chief financial
officer or other appropriate officer, partner or member of Mortgagor, and (ii)
annual financial statements for Mortgagor and the Premises and annual audited
financial statements for any guarantor of the Note certified by such guarantor
to be true, correct and complete, in each case, no later than one hundred five
(105) days after the end of each fiscal year, and an operating budget for the
Premises for the next year.
31. Statement of Indebtedness. Mortgagor, within ten (10) business days
after being so requested by Mortgagee, shall furnish a duly acknowledged written
statement setting forth the amount of the debt secured by this Mortgage, the
date to which interest has been paid and stating either that no offsets or
defenses exist against such debt or, if such offsets or defenses are alleged to
exist, the nature thereof.
32. Further Instruments. Upon request of Mortgagee, Mortgagor shall
execute, acknowledge and deliver all such additional instruments and further
assurances of title and shall do or cause to be done all such further acts and
things as may reasonably be necessary fully to effectuate the intent of this
Mortgage and of the other Loan Documents.
33. Additional Indebtedness Secured. All persons and entities with any
interest in the Premises or about to acquire any such interest should be aware
that this Mortgage secures more than the stated principal amount of the Note and
interest thereon; this Mortgage secures any and all other amounts which may
become due under the Note or any other document or instrument evidencing,
securing or otherwise affecting the Indebtedness, including, without limitation,
any and all amounts expended by Mortgagee to operate, manage or maintain the
Premises or to otherwise protect the Premises or the lien of this Mortgage.
34. Indemnity. Mortgagor hereby covenants and agrees that no liability
shall be asserted or enforced against Mortgagee in the exercise of the rights
and powers granted to Mortgagee in this Mortgage, and Mortgagor hereby expressly
waives and releases any such liability. Mortgagor shall indemnify and save
Mortgagee harmless from and against any and all liabilities, obligations,
losses, damages, claims, costs and expenses (including reasonable attorneys'
fees and court costs) (collectively, "Claims") of whatever kind or nature which
may be imposed on, incurred by or asserted against Mortgagee at any time by any
third party which relate to or arise from: (a) any suit or proceeding (including
probate and bankruptcy proceedings), or the threat thereof, in or to which
Mortgagee may or does become a party, either as plaintiff or as a defendant, by
reason of this Mortgage or for the purpose of protecting the lien of this
Mortgage; (b) the offer for sale or sale of all or any portion of the Premises;
and (c) the ownership, leasing, use, operation or maintenance of the Premises,
if such Claims relate to or arise from actions taken prior to the surrender of
possession of the Premises to Mortgagee in accordance with the terms of this
Mortgage; provided, however, that Mortgagor shall not be obligated to indemnify
or hold Mortgagee harmless from and against any Claims directly arising from the
gross negligence or willful misconduct of Mortgagee. All costs provided for
herein and paid for by Mortgagee shall be so much additional Indebtedness and
shall become immediately due and payable upon demand by Mortgagee and with
interest thereon from the date incurred by Mortgagee until paid at the Default
Rate.
35. Subordination of Property Manager's Lien. Any property management
agreement for the Premises entered into hereafter with a property manager shall
contain a provision whereby the property manager agrees that any and all
mechanics' lien rights that the property manager or anyone claiming by, through
or under the property manager may have in the Premises shall be subject and
subordinate to the lien of this Mortgage and shall provide that Mortgagee may
terminate such agreement at any time after the occurrence of an Event of Default
hereunder. Such property management agreement or a short form thereof, at
Mortgagee's request, shall be recorded with the Recorder of Deeds of the county
where the Premises are located. In addition, if the property management
agreement in existence as of the date hereof does not contain a subordination
provision, Mortgagor shall cause the property manager under such agreement to
enter into a subordination of the management agreement with Mortgagee, in
recordable form, whereby such property manager subordinates present and future
lien rights and those of any party claiming by, through or under such property
manager to the lien of this Mortgage.
36. Compliance with Environmental Laws. Mortgagor acknowledges that
concurrently herewith Mortgagor has executed and delivered to Mortgagee an
Environmental Indemnity Agreement ("Indemnity") pursuant to which Mortgagor and
Guarantor (as defined in the Note) have fully indemnified Mortgagee for certain
environmental matters concerning the Premises, as more particularly described
therein. The provisions of the Indemnity are hereby incorporated herein and this
Mortgage shall secure the obligations of Mortgagor thereunder. Mortgagor agrees
to abide by all of the provisions of the Indemnity.
37. Debt Service Ratio.
a. During any calendar quarter ending on March 31, June 30,
September 30 or December 31 (a "Quarter"), Mortgagor shall not permit
the ratio of Operating Cash Flow (as defined below) during such Quarter
to Debt Service (as defined below) during such Quarter to be less than
1.25 to 1.00 ("Debt Service Ratio").
As used herein, "Operating Cash Flow" shall mean for any
period all rental income (including minimum rent, additional rent,
escalation and pass through payments) actually received by Mortgagor
during such period arising from the ownership and operation of the
Premises (excluding tenant security deposits, and rent paid during such
period by any tenant for more than three months of rental obligations)
less the sum of all costs, taxes, expenses and disbursements of every
kind, nature or description actually paid or due and payable during
such period in connection with the leasing, management, operation,
maintenance and repair of the Premises and of the personal property,
fixtures, machinery, equipment, systems and apparatus located therein
or used in connection therewith, but excluding (i) non-cash expenses,
such as depreciation and amortization costs, (ii) state and federal
income taxes, (iii) the non-current portion of capital expenditures
determined in accordance with generally accepted accounting principles,
(iv) debt service payable on the Loan, and (v) principal and interest
payments on other loans expressly permitted by Mortgagee. In
determining Operating Cash Flow, (a) extraordinary items of income,
such as those resulting from casualty or condemnation or lease
termination payments of tenants, shall be deducted from income and (b)
real estate taxes and insurance premiums shall be treated as expenses
to the extent of an annualized amount based upon the amount of the most
recent bill for real estate taxes and insurance premiums (regardless of
whether the same shall have been paid or have become due and payable
during such Quarter) multiplied by one-quarter (1/4).
b. As used herein, "Debt Service" for any Quarter shall equal
the sum of all principal and interest payments on the Loan and any
other indebtedness of Mortgagor that is due and payable during such
Quarter.
c. Operating Cash Flow and Debt Service shall be calculated by
Mortgagee based on the financial information provided to Mortgagee by
Mortgagor and independently verified by Mortgagee and the calculations
so verified shall be final and binding upon Mortgagor and Mortgagee.
d. If at any time during any Quarter Mortgagee reasonably
believes that an event has occurred which will cause a decrease in the
Operating Cash Flow during such Quarter (including, without limitation,
an increase in the real estate taxes due to an increase in the assessed
valuation of the Premises, the applicable tax rate or otherwise) and,
as a result thereof, the ratio of Operating Cash Flow to Debt Service
during such Quarter (or any Quarter thereafter) shall be less than 1.25
to 1.00, then an Event of Default shall be deemed to exist as of the
last day of such Quarter unless Mortgagor, on or before the last day of
such Quarter, has delivered to Mortgagee evidence reasonably
satisfactory to Mortgagee that the ratio of Operating Cash Flow to Debt
Service as of such day is or shall be at least 1.25 to 1.00.
38. Minimum Tangible Net Worth . Mortgagor shall maintain at all times
a consolidated tangible net worth (which equals assets less prepaid expenses,
value of intangible assets, escrow and security deposits, and receivables due
from related parties, as determined in accordance with generally accepted
accounting principles consistently applied) of not less than $5,000,000.
39. Miscellaneous.
a. Successors and Assigns. This Mortgage and all provisions
hereof shall be binding upon and enforceable against Mortgagor and its
assigns and other successors. This Mortgage and all provisions hereof
shall inure to the benefit of Mortgagee, its successors and assigns and
any holder or holders, from time to time, of the Note.
b. Invalidity of Provisions; Governing Law. In the event that
any provision of this Mortgage is deemed to be invalid by reason of the
operation of law, or by reason of the interpretation placed thereon by
any administrative agency or any court, Mortgagor and Mortgagee shall
negotiate an equitable adjustment in the provisions of the same in
order to effect, to the maximum extent permitted by law, the purpose of
this Mortgage and the validity and enforceability of the remaining
provisions, or portions or applications thereof, shall not be affected
thereby and shall remain in full force and effect. This Mortgage is to
be construed in accordance with and governed by the laws of the State
of Illinois.
c. Municipal Requirements. Mortgagor shall not by act or
omission permit any building or other improvement on premises not
subject to the lien of this Mortgage to rely on the Premises or any
part thereof or any interest therein to fulfill any municipal or
governmental requirement, and Mortgagor hereby assigns to Mortgagee any
and all rights to give consent for all or any portion of the Premises
or any interest therein to be so used. Similarly, no building or other
improvement on the Premises shall rely on any premises not subject to
the lien of this Mortgage or any interest therein to fulfill any
governmental or municipal requirement. Any act or omission by Mortgagor
which would result in a violation of any of the provisions of this
subparagraph shall be void.
d. Rights of Tenants. Mortgagee shall have the right and
option to commence a civil action to foreclose this Mortgage and to
obtain a decree of foreclosure and sale subject to the rights of any
tenant or tenants of the Premises having an interest in the Premises
prior to that of Mortgagee. The failure to join any such tenant or
tenants of the Premises as party defendant or defendants in any such
civil action or the failure of any decree of foreclosure and sale to
foreclose their rights shall not be asserted by Mortgagor as a defense
in any civil action instituted to collect the Indebtedness, or any part
thereof or any deficiency remaining unpaid after foreclosure and sale
of the Premises, any statute or rule of law at any time existing to the
contrary notwithstanding.
e. Option of Mortgagee to Subordinate. At the option of
Mortgagee, this Mortgage shall become subject and subordinate, in whole
or in part (but not with respect to priority of entitlement to
insurance proceeds or any condemnation or eminent domain award) to any
and all leases of all or any part of the Premises upon the execution by
Mortgagee of a unilateral declaration to that effect and the recording
thereof in the Office of the Recorder of Deeds in and for the county
wherein the Premises are situated.
f. Mortgagee in Possession. Nothing herein contained shall be
construed as constituting Mortgagee a mortgagee in possession in the
absence of the actual taking of possession of the Premises by Mortgagee
pursuant to this Mortgage.
g. Relationship of Mortgagee and Mortgagor. Mortgagee shall in
no event be construed for any purpose to be a partner, joint venturer,
agent or associate of Mortgagor or of any lessee, operator,
concessionaire or licensee of Mortgagor in the conduct of their
respective businesses, and, without limiting the foregoing, Mortgagee
shall not be deemed to be such partner, joint venturer, agent or
associate on account of Mortgagee becoming a mortgagee in possession or
exercising any rights pursuant to this Mortgage, any of the other Loan
Documents, or otherwise. The relationship of Mortgagor and Mortgagee
hereunder is solely that of debtor/creditor.
h. Time of the Essence. Time is of the essence of the payment
by Mortgagor of all amounts due and owing to Mortgagee under the Note
and the other Loan Documents and the performance and observance by
Mortgagor of all terms, conditions, obligations and agreements
contained in this Mortgage and the other Loan Documents.
i. No Merger. The parties hereto intend that the Mortgage and
the lien hereof shall not merge in fee simple title to the Premises,
and if Mortgagee acquires any additional or other interest in or to the
Premises or the ownership thereof, then, unless a contrary intent is
manifested by Mortgagee as evidenced by an express statement to that
effect in an appropriate document duly recorded, this Mortgage and the
lien hereof shall not merge in the fee simple title and this Mortgage
may be foreclosed as if owned by a stranger to the fee simple title.
j. Maximum Indebtedness. Notwithstanding anything contained
herein to the contrary, in no event shall the Indebtedness exceed an
amount equal to $2,500,000; provided, however, in no event shall
Mortgagee be obligated to advance funds in excess of the face amount of
the Note.
k. Consent to Jurisdiction TO INDUCE MORTGAGEE TO ACCEPT THE
NOTE, MORTGAGOR IRREVOCABLY AGREES THAT, SUBJECT TO MORTGAGEE'S SOLE
AND ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS IN ANY WAY ARISING
OUT OF OR RELATED TO THE NOTE AND THIS MORTGAGE WILL BE LITIGATED IN
COURTS HAVING SITUS IN CHICAGO, ILLINOIS. MORTGAGOR HEREBY CONSENTS AND
SUBMITS TO THE JURISDICTION OF ANY COURT LOCATED WITHIN CHICAGO,
ILLINOIS, WAIVES PERSONAL SERVICE OF PROCESS UPON MORTGAGOR, AND AGREES
THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL
DIRECTED TO MORTGAGOR AT THE ADDRESS STATED HEREIN AND SERVICE SO MADE
WILL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT.
l. Waiver of Jury Trial. MORTGAGOR AND MORTGAGEE (BY
ACCEPTANCE HEREOF), HAVING BEEN REPRESENTED BY COUNSEL EACH KNOWINGLY
AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (a) UNDER THIS MORTGAGE OR
ANY RELATED AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION WITH THIS MORTGAGE OR (b) ARISING FROM ANY BANKING
RELATIONSHIP EXISTING IN CONNECTION WITH THIS MORTGAGE, AND AGREES THAT
ANY SUCH ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY. MORTGAGOR AGREES THAT IT WILL NOT ASSERT ANY CLAIM
AGAINST MORTGAGEE OR ANY OTHER PERSON INDEMNIFIED UNDER THIS MORTGAGE
ON ANY THEORY OF LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL,
INCIDENTAL OR PUNITIVE DAMAGES.
m. Complete Agreement. This Mortgage, the Note and the other
Loan Documents constitute the complete agreement between the parties
with respect to the subject matter hereof and the Loan Documents may
not be modified, altered or amended except by an agreement in writing
signed by both Mortgagor and Mortgagee.
IN WITNESS WHEREOF, Mortgagor has executed and delivered this Mortgage
the day and year first above written.
MXL Industries, Inc., a Delaware corporation
By:
---------------------------------------
Name:
---------------------------------
Title:
--------------------------------
STATE OF ILLINOIS )
) SS.
COUNTY OF __________ )
I, , a Notary Public in and for said County, in the State aforesaid, do
hereby certify that , the of MXL Industries, Inc., a Delaware corporation, who
is personally known to me to be the same person whose name is subscribed to the
foregoing instrument as such ______________, appeared before me this day in
person and acknowledged that he/she signed and delivered the said instrument as
his/her own free and voluntary act and as the free and voluntary act of said
_________, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal, this ____ day of ________, 2001.
NOTARY PUBLIC
(SEAL)
EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
LOT 1 IN FRANK LOPATA RESUBDIVISION OF LOTS 10, 11 AND 12 IN THE RESUBDIVISION
OF LOTS 8 TO 13 INCLUSIVE IN ELLSWORTH PARK UNIT 3, AND LOT 24 IN ELLSWORTH PARK
UNIT 5 IN THE EAST 1/2 OF THE SOUTHWEST 1/4 OF SECTION 12 AND THE NORTH 1/2 OF
THE SOUTHEAST 1/4 OF SECTION 12, TOWNSHIP 38 NORTH, RANGE 10, EAST OF THE THIRD
PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT OF SAID FRANK LOPATA RESUBDIVISION
RECORDED AUGUST 13, 1965 AS DOCUMENT R65-30445, IN DU PAGE COUNTY, ILLINOIS.
PIN: 08-12-407-006
Address: 2300 Wisconsin Street, Downers Grove, Illinois 60515
EXHIBIT B
PERMITTED EXCEPTIONS
1. General real estate taxes for the second installment of 2001 and
each year thereafter not yet due and payable.
2. Exceptions AC, J, K, L, inclusive, contained on Schedule B of
Chicago Title Insurance Company Commitment No. 1410 002105366 dated March 22,
2001.
EXHIBIT C
INSURANCE REQUIREMENTS
[To be prepared by LaSalle Bank's closing officer]