EX-10.79
CORPORATE RESOLUTION
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Corporation: Abidon, Inc. Lender: Bank One, Illinois, N.A.
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WE, THE UNDERSIGNED, DO HEREBY CERTIFY THAT:
THE CORPORATION'S EXISTENCE. The complete and correct name of the
Corporation is Abidon, Inc. ("Corporation"). The Corporation is a
corporation for profit which is, and at all time shall be, duly organized,
validly existing, and in good standing under and by virtue of the laws of
the State of Delaware. The Corporation is duly authorized to transact
business in the State of Illinois and all other states in which the
Corporation is doing business, having obtained all necessary filings,
governmental licenses and approvals for each state in which the Corporation
is doing business. Specifically, the Corporation is, and at all times shall
be, duly qualified as a foreign corporation in all states in which the
failure to do so qualify would have a material adverse effect on its
business or financial condition. The Corporation has the full power and
authority to own its properties and to transact the business in which it is
presently engaged or presently proposes to engage. The Corporation
maintains an office at ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Unless the
Corporation has designated otherwise in writing, the principal office is the
office at which the Corporation keeps its books and records. The
Corporation will notify Lender prior to any change in the location of the
Corporation's state of organization or any change in the Corporation's name.
The Corporation shall do all things necessary to preserve and to keep in
full force and effect its existence, rights and privileges, and shall comply
with all regulations, rules, ordinances, statutes, orders and decrees of any
governmental or quasi-governmental authority or court applicable to the
Corporation and the Corporation's business activities.
RESOLUTIONS ADOPTED. At a meeting of the Directors of the Corporation, or if
the Corporation is a close corporation having no Board of Directors then at
a meeting of the Corporation's shareholders, duly called and held on
________________, at which a quorum was present and voting, or by other duly
authorized action in lieu of a meeting, the resolutions set forth in this
Resolution were adopted.
OFFICERS. The following named persons are officers of Abidon, Inc.:
NAMES TITLES AUTHORIZED ACTUAL SIGNATURES
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ President Y X ___________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Secretary Y X ___________________
ACTIONS AUTHORIZED. Any one (1) of the authorized persons listed above may
enter into any agreements of any nature with Lender, and those agreements
will bind the Corporation. Specifically, but without limitation, any one
(1) of such authorized persons are authorized, empowered, and directed to
the do the following for and on behalf of the Corporation:
Borrow Money. To borrow and incur any indebtedness or credit
accommodations from time to time from Lender, on such terms as may be
agreed upon between the Corporation and Lender, such sum or sums of
money as in their judgment should be borrowed or incurred, including
without limitation, entering into reimbursement agreements related to
letters of credit.
Execute Notes. To execute and deliver to Lender the promissory note or
notes, or other evidence of the Corporation's credit accommodations, on
Lender's forms, at such rates of interest and on such terms as may be
agreed upon, evidencing the sums of money so borrowed or any of the
Corporation's indebtedness to Lender, and also to execute and deliver to
Lender one or more renewals, extensions, modifications, refinancings,
consolidations, or substitutions for one or more of the notes, any
portion of the notes, or any other evidence of credit accommodations.
Guaranty. To guarantee an act as surety for loans or other financial
accommodations to any person or entity from Lender on such guarantee or
surety terms as may be agreed upon with Lender.
Grant Security. To mortgage, pledge, transfer, endorse, hypothecate, or
otherwise encumber and deliver to Lender any property now or hereafter
belonging to the Corporation or in which the Corporation now or
hereafter may have an interest, including without limitation all real
property and all personal property (tangible or intangible) of the
Corporation, as security for the payment of any loans or credit
accommodations so obtained, any promissory notes so executed (including
the amendments to or modifications, renewals, and extensions of such
promissory notes), or any other or further indebtedness of the
Corporation, any other person or any other entity owed to Lender at any
time, however the same may be evidenced. Such property may be
mortgaged, pledged, transferred, endorsed, hypothecated, encumbered or
otherwise secured or encumbered at the time such loans are obtained or
such indebtedness is incurred, or at any other time or times, and may be
either in addition to or in lieu of any property theretofore mortgaged,
pledged, transferred, endorsed, hypothecated or encumbered.
Execute Security Documents. To execute and deliver to Lender the forms
of mortgage, deed of trust, pledge agreement, hypothecation agreement,
and other security agreements and financial statements which Lender may
require and which shall evidence the terms and conditions under and
pursuant to which such liens and encumbrances, or any of them, are give;
and also to execute and deliver to Lender any other written instruments,
any chattel paper, or any other collateral, of any kind or nature, which
Lender may deem necessary or proper in connection with or pertaining to
the giving of the liens and encumbrances. Notwithstanding the
foregoing, any of the above authorized persons may execute, deliver, or
record financing statements.
Subordination. To subordinate, in all respects, any and all present and
future indebtedness, obligations, liabilities, claims, rights, and
demands of any kind which may be owed, now or hereafter, from any person
or entity to the Corporation to all present and future indebtedness,
obligations, liabilities, claims, rights, and demands of any kind which
may be owed, now or hereafter, from such person or entity to Lender
("Subordinated Indebtedness"), together with subordination by the
Corporation of any and all security interests of any kind, whether now
existing or hereafter acquired, securing payment or performance of the
Subordinated Indebtedness; all on such subordination terms as may be
agreed upon between the Corporation's Officers and Lender and in such
amounts as in their judgment should be subordinated.
Negotiate Items. To draw, endorse, and discount with Lender all drafts,
trade acceptances, promissory notes, or other evidences of indebtedness
payable to or belonging to the Corporation or in which the Corporation
may have an interest, and either to receive cash for the same or to
cause such proceeds to be credited to the Corporation's account with
Lender, or to cause such other disposition of the proceeds derived
therefrom as they may deem advisable.
Further Acts. In the case of lines of credit, to designate additional
or alternate individuals as being authorized to request advances under
such lines, and in all cases, to do and perform such other acts and
things, to pay any and all fees and costs, and to execute and deliver
such other documents and agreements, including agreements confessing
judgment against the Corporation, as the officers may in their
discretion deem reasonably necessary or proper in order to carry into
effect the provisions of this Resolution.
ASSUMED BUSINESS NAMES. The Corporation has filed or recorded all documents
or filings required by law relating to all assumed business names used by
the Corporation. Excluding the name of the Corporation, the following is a
complete list of all assumed business names under which the Corporation does
business: None.
NOTICES TO LENDER. The Corporation will promptly notify Lender in writing
at Lender's address shown above (or such other addresses as Lender may
designate from time to time) prior to any (A) change in the Corporation's
name; (B) change in the Corporation's assumed business name(s); (C) change
in the management of the Corporation; (D) change in the authorized
signer(s); (E) change in the Corporation's principal office address; (F)
change in the Corporation's state of organization; (G) conversion of the
Corporation to a new or different type of business entity; or (H) change in
any other aspect of the Corporation that directly or indirectly relates to
any agreements between the Corporation and Lender. No change in the
Corporation's name or state of organization will take effect until after
Lender has received notice.
CERTIFICATION CONCERNING OFFICERS AND RESOLUTIONS. The officers named above
are duly elected, appointed, or employed by or for the Corporation, as the
case may be, and occupy the positions set opposite their respective names.
This Resolution now stands of record on the books of the Corporation, is in
full force and effect, and has not been modified or revoked in any manner
whatsoever.
NO CORPORATE SEAL. The Corporation has no corporate seal, and therefore, no
seal is affixed to this Resolution.
CONTINUING VALIDITY. Any and all acts authorized pursuant to this
Resolution and performed prior the passage of this Resolution are hereby
ratified and approved. This Resolution shall be continuing, shall remain in
full force and effect and Lender may rely on it until written notice of its
revocation shall have been delivered to and received by Lender at Lender's
address shown above (or such addresses as Lender may designate from time to
time). Any such notice shall not affect any of the Corporation's agreements
or commitments in effect at the time notice is given.
IN TESTIMONY WHEREOF, We have hereunto set our hand and attest that the
signatures set opposite the names listed above are their genuine signatures.
We each have read all the provisions of this Resolution, and we each
personally and on behalf of the Corporation certify that all statements and
representations made in this Resolution are true and correct. This
Corporate is dated _________________. THIS RESOLUTION IS GIVEN UNDER SEAL
AND IT IS INTENDED THAT THIS RESOLUTION IS AND SHALL CONSTITUTE AND HAVE THE
EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
CERTIFIED TO AND ATTESTED BY:
By: (Seal)
Authorized Signer
NOTE: If the officers signing this Resolution are designated by the
foregoing document as one of the officers authorized to act on the
Corporation's behalf, it is advisable to have this Resolution signed by at
least one non-authorized officer of the Corporation.
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PROMISSORY NOTE
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Borrower: Abidon, Inc. Lender: Bank One, Illinois, N.A.
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Principal Amount: $111,827.58 Date of Note: December 11, 2001
PROMISE TO PAY. Abidon, Inc. ("Borrower") promises to pay to Bank One,
Illinois, N.A. ("Lender"), or order, in lawful money of the United States of
America, the principal amount of One Hundred Eleven Thousand Eight Hundred
Twenty-seven & 58/100 Dollars ($111,827.58), together with interest at the
rate of 6.500% per annum on the unpaid principal balance from December 11,
2001, until paid in full.
PAYMENT. Borrower will pay this loan in 22 regular payments of $5,300.00
each and one irregular last payment estimated at $2,556.80. Borrower's
first payment is due January 10, 2002, and all subsequent payments are due
on the same day of each month after that. Borrower's final payment will be
due on November 10, 2003, and will be for all principal and all accrued
interest not yet paid. Payments include principal and interest. Payments
and other credits shall be allocated among principal, interest and fees at
the discretion of Lender unless otherwise required by applicable law. The
annual interest rate for this Note is computed on a 365/360 basis; that is,
by applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual
number of days the principal balance is outstanding. Borrower will pay
Lender at Lender's address shown on loan account statements sent to the
Borrower, Lender's address shown in any payment coupon book provided to the
Borrower, or at such other place as Lender may designate in writing.
PREPAYMENT. Borrower may pay without fee all or a portion of the principal
amount owed hereunder earlier than it is due. All prepayments shall be
applied to the Indebtedness in such order and manner as Lender may from time
to time determine in its sole discretion. Borrower agrees not to send
Lender payments marked "paid in full", "without recourse", or similar
language. If Borrower sends such a payment, Lender may accept it without
losing any of Lender's rights under this Note, and Borrower will remain
obligated to pay any further amount owed to Lender. All written
communications concerning disputed amounts, including any check or other
payment instrument that indicates that the payment constitutes "payment in
full" of the amount owed or that is tendered with other conditions or
limitations or as full satisfaction of a disputed amount must be mailed or
delivered to: Bank One Business Banking Loan Servicing Disputed Accounts
Department, ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
5.000% of the regularly scheduled payment or $25.00, whichever is greater.
INTEREST AFTER DEFAULT. Upon the occurrence of any Event of Default,
including failure to pay upon final maturity, at Lender's option, and if
permitted by applicable law, Lender may add any unpaid accrued interest to
principal and such sum will bear interest therefrom until paid at the rate
provided in this Note (including any increased rate). Upon the occurrence
of any Event of Default, Lender, at its option, may, if permitted under
applicable law, increase the interest rate on this Note 3.000 percentage
points. The interest rate will not exceed the maximum rate permitted by
applicable law.
DEFAULT. Each of the following shall constitute an event of default ("Event
of Default") under this Note:
Payment Default. Borrower fails to make any payment when due under this
Note.
Other Defaults. Borrower fails to comply with or to pay or perform any
other term, obligation, covenant or condition contained in this Note or
in any of the Related Documents or to comply with or to pay or perform
any term, obligation, covenant or condition contained in any other
agreement between Lender and Borrower or between Borrower and any
affiliate of BANK ONE CORPORATION.
Transfer of Assets. Borrower leases, sells, or otherwise conveys, or
agrees to lease, sell, or otherwise convey, a material part of its
assets or business outside of the ordinary course of business.
Defaults with Respect to Third Parties. Borrower fails to make any
payment when due or fails to comply with or to perform any term,
obligation, covenant or condition contained in any agreement between any
other person and Borrower.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Note
or the Related Documents is false or misleading in any material respect,
either now or at the time made or furnished or becomes false or
misleading at any time thereafter.
Judgement or Decrees. One or more judgments or decrees shall be entered
against the Borrower and such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal.
Insolvency. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a
receiver for any part of Borrower's property, any assignment for the
benefit of creditors, any type of creditor workout, or the commencement
of any proceeding under any bankruptcy or insolvency laws by or against
borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure,
replevin, repossession, attachment, levy, execution, or forfeiture
proceedings, whether by judicial proceeding, self-help, or any other
method, by any creditor of Borrower, or by any governmental agency
against the Collateral or any other assets of Borrower. This includes a
garnishment of any of Borrower's accounts, including deposit accounts,
with Lender. However, this Event of default shall not apply if there is
a good faith dispute by Borrower as to the validity or reasonableness of
the claim which is the basis of the creditor or forfeiture proceeding
and if Borrower gives Lender written notice of the creditor or
forfeiture proceeding and deposits with Lender monies or a surety bond
for the creditor or forfeiture proceeding, in an amount determined by
Lender, in its sole discretion, as being an adequate reserve or bond for
the dispute.
Failure to Comply with Laws. Borrower fails to comply with all
applicable statutes, laws, ordinances and governmental rules,
regulations and orders to which it is subject or which are applicable to
its business, property and assets.
Change in Ownership. Any change in ownership of twenty-five percent
(25%) or more of the common stock of Borrower.
Adverse Change. A material adverse change occurs in Borrower's
financial condition, or Lender believes the prospect of payment or
performance of this Note is impaired.
Events Affecting Guarantor. Any of the preceding Events of Default
occurs with respect to any guarantor of the Indebtedness as if the word
"guarantor" were substituted for the word "Borrower" in such Event of
Default, or any guarantor dies or becomes incompetent, or revokes or
disputes the validity of, or liability under, any guaranty.
Insecurity. Lender in good faith believes itself insecure.
LENDER'S RIGHTS. Upon the occurrence of any Event of Default, Lender may
declare the entire unpaid balance on this Note and the indebtedness and all
accrued unpaid interest immediately due, without notice (except that in the
case of any Event of Default of the type described in the DEFAULT -
Insolvency section herein, such acceleration shall be automatic and not at
Lender's option), and then Borrower will pay that amount. Borrower shall be
liable for any deficiency remaining after disposition of any collateral
which Lender may choose to realize upon.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help
collect this Note if Borrower does not pay. Borrower will pay Lender that
amount. This includes, subject to any limits under applicable law, Lender's
attorneys' fees and Lender's legal expenses, whether or not there is a
lawsuit, including attorneys' fees, expenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injunction),
and appeals. If not prohibited by applicable law, Borrower also will pay
any court costs, in addition to all other sums provided by law.
GOVERNING LAW. This Note will be governed by, construed and enforced in
accordance with federal law and the laws of the State of Illinois. This
Note has been accepted by Lender in the State of Illinois.
CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's
request to submit to the jurisdiction of the courts of Winnebago County,
State of Illinois.
CONFESSION OF JUDGMENT. Borrower hereby irrevocably authorizes and empowers
any attorney-at-law to appear in any court of record and to confess judgment
against Borrower for the unpaid amount of this Note as evidenced by an
affidavit signed by an officer of Lender setting forth the amount then due,
attorneys' fees plus costs of suit, and to release all errors, and waive all
rights of appeal. If a copy of this Note, verified by an affidavit, shall
have been filed in the proceeding, it will not be necessary to file the
original as a warrant of attorney. Borrower waives the right to any stay of
execution and the benefit of all exemption laws now or hereafter in effect.
No single exercise of the foregoing warrant and power to confess judgment
will be deemed to exhaust the power, whether or not any such exercise shall
be held by an court to be invalid, voidable, or void; but the power will
continue undiminished and may be exercised from time to time as Lender may
elect until all amounts owing on this Note have been paid in full. Borrower
hereby waives and releases any and all claims or causes of action which
Borrower might have against any attorney acting under the terms of authority
which Borrower has granted herein arising out of or connected with the
confession of judgment hereunder.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $25.00 if
Borrower makes a payment on Borrower's loan and the check or preauthorized
charge with which Borrower pays is later dishonored.
RIGHT OF SETOFF. Borrower grants to Lender a security interest in, as well
as a right of setoff against, and hereby assigns, conveys, delivers, pledges
and transfers to Lender, as security for repayment of the Indebtedness, all
Borrower's right, title and interest in and to all Borrower's accounts
(whether checking, savings, or some other account) with Lender or any
subsidiary or affiliate of BANK ONE CORPORATION (each hereinafter referred
to as a "Lender Affiliate") and all other obligations at any time owing by
Lender or any Lender Affiliate to Borrower. This includes all accounts
Borrower holds jointly with someone else and all accounts Borrower may open
in the future. However, this does not include any ▇▇▇ or ▇▇▇▇▇ accounts, or
any trust accounts for which the grant of a security interest would be
prohibited by law. Borrower authorizes Lender, without prior notice to
Borrower and irrespective of (i) whether or not Lender has made any demand
under this Note or the Related Documents or (ii) whether such Indebtedness
is contingent, matured or unmatured, to the extent permitted by law, to
collect, charge and/or setoff all sums owing on the Indebtedness against any
and all such accounts and other obligations, and, at Lender's option, to
administratively freeze or direct a Lender Affiliate to administratively
freeze all such accounts and other obligations to allow Lender to protect
Lender's security interest, collection, charge and setoff rights provided in
this paragraph.
COLLATERAL. Borrower acknowledges this Note is secured by security interest
in and lien upon all collateral described in any Related Document.
LATE CHARGES. In the "Late Charge" provision set forth above, the following
language is hereby added after the word "greater": "up to the maximum amount
of Two Hundred Fifty Dollars ($250.00) per late charge."
FINANCIAL STATEMENTS. Borrower shall furnish Lender with such financial
statements and other related information at such frequencies and in such
detail as Lender may reasonably request.
ENFORCEABILITY AND ORGANIZATION. Borrower is duly authorized to transact
business in all states in which Borrower is doing business, having obtained
all necessary filings, governmental licenses and approvals for each state in
which Borrower is doing business. Borrower's execution, delivery and
performance of this Note and all the Related Documents have been duly
authorized by all necessary action by Borrower. This Note and all the
Related Documents constitute legal, valid and binding obligations of
Borrower enforceable against Borrower in accordance with their respective
terms. If applicable, Borrower is an entity which is, and at all times
shall be, duly organized, validly existing, and in good standing under and
by virtue of the laws of the state of its organization.
INFORMATION WAIVER. Lender may provide, without any limitation whatsoever,
to any one or more purchasers, potential purchasers, or affiliates of BANK
ONE CORPORATION, any information or knowledge Lender may have about the
undersigned or about any matter relating to this document and the Related
Documents, and the undersigned hereby waives any right to privacy the
undersigned may have with respect to such matters.
INDEBTEDNESS. The word "Indebtedness" means all principal, interest, and
other amounts, costs and expenses payable under the Note or Related
Documents, together with all renewals of, extensions of, modifications of,
consolidations of and substitutions for the Note or Related Documents,
together with interest on such amounts as provided in this Note, and all
obligations, debts and liabilities, plus interest thereon, of Borrower or
any one or more of them to lender, as well as all claims by Lender against
Borrower or any one or more of them, whether now existing or hereafter
arising, whether related or unrelated to the purpose of this Note, whether
voluntary or otherwise, whether due or not due, direct or indirect, absolute
or contingent, liquidated or unliquidated and whether Borrower may be liable
individually or jointly with others, whether obligated as guarantor, surety,
accommodation party or otherwise and whether recovery upon such amounts may
be or hereafter become barred by any statute of limitations, and whether the
obligation to repay such amounts may be or hereafter become otherwise
unenforceable; and further includes, without limitation, all principal,
interest, and other amounts, costs and expenses payable under the Related
Documents, whether executed by the Borrower or by any other person or
entity, together with all renewals of, extensions of, modifications of,
consolidations of and substitutions for the Related Documents, together with
interest thereon as provided in the Related Documents.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
existing or hereafter arising, executed in connection with the Indebtedness.
LIABILITIES FOR OBLIGATIONS UNDER RELATED DOCUMENTS. Borrower also promises
to pay to Lender all of the Indebtedness. Borrower acknowledges that some
of the Related Documents, pursuant to which Indebtedness may arise, may be
executed only by persons or entities other than the Borrower.
PURPOSE. Borrower agrees that no advances under this Note shall be used for
personal, family or household purposes and that all advances hereunder shall
be used solely for business, commercial, agricultural or other similar
purposes.
ARBITRATION. Undersigned and Lender agree that all disputes, claims and
controversies between them whether individual, joint, or class in nature,
arising from this document or otherwise, including without limitation
contract and tort disputes, shall be arbitrated pursuant to the Rules of the
American Arbitration Association in effect at the time the claim is filed,
upon request of either party. No act to take or dispose of any Collateral
or Property (as defined herein or in any Related Document) securing this
Document shall constitute a waiver of this arbitration agreement or be
prohibited by this arbitration agreement. This includes, without
limitation, obtaining injunctive relief or a temporary restraining order;
invoking a power of sale under any deed of trust or mortgage; obtaining a
writ of attachment or imposition of a receiver; or exercising any rights
relating to personal property, including taking or disposing of such
property with or without judicial process pursuant to applicable law. Any
disputes, claims, or controversies concerning the lawfulness or
reasonableness of any act, or exercise of any right, concerning any
Collateral or Property securing this document, including any claim to
rescind, reform, or otherwise modify any agreement relating to the
Collateral or Property securing this document, shall also be arbitrated,
provided however that no arbitrator shall have the right or the power to
enjoin or restrain any act of any party. Judgement upon any award rendered
by any arbitrator may be entered in any court having jurisdiction. Nothing
in this document shall preclude any party from seeking equitable relief from
a court of competent jurisdiction. The statute of limitations, estoppel,
waiver, laches, and similar doctrines which would otherwise be applicable in
an action brought by a party shall be applicable in any arbitration
proceeding, and the commencement of an arbitration proceeding shall be
deemed the commencement of an action for these purposes. The Federal
Arbitration Act shall apply to the construction, interpretation, and
enforcement of this arbitration provision.
JURY WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON
CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG THE UNDERSIGNED AND LENDER
ARISING OUT OF OR IN ANY WAY RELATED TO THIS DOCUMENT, THE RELATED
DOCUMENTS, OR ANY RELATIONSHIP BETWEEN OR AMONG THE UNDERSIGNED AND LENDER.
THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE FINANCING
EVIDENCED BY THIS DOCUMENT AND THE RELATED DOCUMENTS.
BORROWER'S ACKNOWLEDGEMENT AND AGREEMENT REGARDING AFFILIATE BANKS.
Borrower may now or in the future have a borrowing relationship with Bank
One, NA with its main office in Columbus, Ohio (the "Bank Affiliate").
Lender and Borrower intend that the terms, covenants, conditions, warranties
and obligations of Borrower in only one agreement in the nature of a loan or
credit agreement ("Loan Agreement") be applicable to the borrowing
relationship of Borrower and Lender and of Borrower and the Bank Affiliate.
Therefore, if Borrower executes a Loan Agreement with the Bank Affiliate,
the Borrower agrees that the terms, covenants, conditions, warranties and
obligations of Borrower contained in that Loan Agreement between Borrower
and the Bank Affiliate shall also apply to this Note.
RENEWAL AND EXTENSION. This Note is given in replacement, renewal and/or
extension of, but not extinguishing the indebtedness evidenced by, the
promissory note dated March 8, 1999 executed by Borrower, formerly known as
Rockford Investors Partnership to Lender, in the original principal amount
of $250,509.16, including previous renewals or modifications thereof, if any
(the "Prior Note"), and is not a novation thereof. All interest evidenced
by the Prior Note being replaced, renewed, and/or extended by this Note
shall continue to be due and payable until paid. All Related Documents
executed in relation to or as security for the Prior Note remain in full
force and effect.
GENERAL PROVISIONS. If any part of this Note cannot be enforced, this fact
will not affect the rest of this Note. It is agreed that any payment which
would otherwise for any reason be deemed unlawful interest under applicable
law shall be deemed to have been applied to the unpaid principal balance of
this Note, or to other Indebtedness. The unpaid balance owing on this Note
at any time may be evidenced by endorsements on this Note or by Lender's
internal records, including daily computer print-outs. Lender may delay or
forgo enforcing any of its rights or remedies under this Note without losing
them. Borrower and any other person who signs, guarantees or endorses this
Note, to the extent allowed by law, waive presentment, demand for payment,
and notice of dishonor. Upon any change in the terms of this Note, and
unless otherwise expressly stated in writing, no party who signs this Note,
whether as maker, guarantor, accommodation maker or endorser, shall be
released from liability. All such parties agree that Lender may renew or
extend (repeatedly and for any length of time) this loan or release any
party or guarantor or collateral; or impair, fail to realize upon or perfect
Lender's security interest in the collateral; and take any other action
deemed necessary by Lender without the consent of or notice to anyone. All
such parties also agree that Lender may modify this loan without the consent
of or notice to anyone other than the party with whom the modification is
made. Unless specifically permitted otherwise by the terms and conditions
of this Note, no alteration of or amendment to this Note shall be effective
unless given in writing and signed by the party or parties sought to be
charged or bound by the alteration or amendment. Borrower agrees and
consents to Lender's sale or transfer, whether now or later, of this Note,
or the Related Documents or of any participation interest in this Note or
Related Documents to one or more purchasers, whether related or unrelated to
Lender. Borrower waives any and all notices of sale of this Note, the
Related Documents or of any participation interests, as well as any notices
of any repurchases of this Note, the Related Documents, or of any
participation interests. The obligations under this Note are joint and
several.
ILLINOIS INSURANCE NOTICE. Unless Borrower provides Lender with evidence of
the insurance coverage required by Borrower's agreement with Lender, Lender
may purchase insurance at Borrower's expense to protect Lender's interests
in the collateral. This insurance may, but need not, protect Borrower's
interests. The coverage that Lender purchases may not pay any claim that
Borrower makes or any claim that is made against Borrower in connection with
the collateral. Borrower may later cancel any insurance purchased by
Lender, but only after providing Lender with evidence that Borrower has
obtained insurance as required by their agreement. If Lender purchases
insurance for the collateral, Borrower will be responsible for the costs of
that insurance, including interest and any other charges Lender may impose
in connection with the placement of the insurance, until the effective date
of the cancellation or expiration of the insurance. The costs of the
insurance may be added to Borrower's total outstanding balance or
obligation. The costs of the insurance may be more than the cost of
insurance Borrower may be able to obtain on Borrower's own.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS
OF THIS NOTE. BORROWER AGREES TO THE TERMS OF THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
BORROWER:
ABIDON, INC.
By: By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President of Abidon, Inc. Secretary of Abidon, Inc.
RECORDATION REQUESTED BY:
Bank One, Illinois, N.A.
Rockford Business Banking
LPO
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
WHEN RECORDED MAIL TO:
Bank One
Commercial Loan Servicing
TX1-1405
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FOR RECORDER'S USE ONLY
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This Mortgage prepared by:
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MORTGAGE
MAXIMUM LIEN. At no time shall the principal amount of Indebtedness secured
by the Mortgage, not including sums advanced to protect the security of the
Mortgage, exceed $111,827.58.
THIS MORTGAGE dated December 11, 2001, is made and executed between Abidon,
Inc., whose address is ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (referred to
below as "Grantor") and Bank One, Illinois, N.A., with a loan production
office at Rockford Business Banking LPO, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ (referred to below as "Lender").
GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages and
warrants to Lender all of Grantor's right, title, and interest, whether
existing or hereafter acquired, in and to the following described real
property, together with all existing or subsequently erected or affixed
buildings, improvements and fixtures; all easements, rights of way, streets,
roads, alleys and public places, privileges and appurtenances, public or
private, now or hereafter used in connection with the Property; all rights
to make divisions of the land that are exempt from the platting requirements
of all applicable land division and/or platting acts, as amended from time
to time; all water, water rights, watercourses and ditch rights (including
stock in utilities with ditch or irrigation rights); all Personal Property;
all licenses, contracts, permits and agreements required or used in
connection with the ownership, operation or maintenance of the Property; all
insurance proceeds; all awards, including interest, made to Grantor for any
taking by eminent domain of the Property; all existing and future leases,
subleases, licenses and other agreements for the use and/or occupancy of the
Property, oral or written, including all extensions, renewals, replacements
and holdovers; all Rents from the Property; and all other rights, royalties,
and profits relating to the real property, including, without limitation,
all minerals, oil, gas, geothermal and similar matters (the "Real Property")
located in Winnebago County, State of Illinois:
See Exhibit "A", which is attached to this Mortgage and made a part of
this Mortgage as if fully set forth herein.
The Real Property or its address is commonly known as ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The Real Property tax
identification number is ▇▇-▇▇-▇▇▇-▇▇▇ and ▇▇-▇▇-▇▇▇-▇▇▇.
CROSS-COLLATERALIZATION. In addition to the Note, this Mortgage secures all
obligations, debts and liabilities, plus interest thereon, of Grantor to
Lender, or any one or more of them, as well as all claims by Lender against
Grantor or any one or more of them, whether now existing or hereafter
arising, whether related or unrelated to the purpose of the Note, whether
voluntary or otherwise, whether due or not due, direct or indirect, absolute
or contingent, liquidated or unliquidated and whether Grantor may be liable
individually or jointly with others, whether obligated as guarantor, surety,
accommodation party or otherwise.
Grantor unconditionally, irrevocably and presently assigns, grants, conveys
and sets over to Lender all of Grantor's right, title and interest in and to
all present and future leases, subleases, licenses and other agreements for
the use and/or occupancy of the Property, oral or written, including all
extensions, renewals, replacements and holdovers (collectively, the
"Leases") and all Rents from the Property. In addition, Grantor grants to
Lender a Uniform Commercial Code security interest in the Personal Property
and the Rents.
This Mortgage, including the assignment of Leases and Rents and the security
interest in the Rents and Personal Property, is given to secure (A) payment
of the Indebtedness and (B) performance of any and all covenants and
obligations under the Note, the Related Documents, and this Mortgage.
THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:
PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage,
Grantor shall pay to Lender all amounts secured by this Mortgage as they
become due and shall strictly perform all of Grantor's obligations under
this Mortgage.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grantor's
possession and use of the Property shall be governed by the following
provisions:
Duty to Maintain. Grantor shall maintain the Property in tenantable
condition and promptly perform all repairs, replacements, and
maintenance necessary to preserve its value.
Compliance With Environmental Laws. Grantor represents and warrants to
Lender that: (1) during the period of Grantor's ownership of the
Property, there has been no generation, manufacture, treatment,
refinement, transportation, disposal, release or threatened release of
any Hazardous Substances by any person on, under, about or from the
Property; (2) Grantor has no knowledge of, or reason to believe that
there has been, except as previously disclosed to and acknowledged by
Lender in writing, (a) any breach or violation of any Environmental
Laws, (b) any generation, manufacture, treatment, refinement,
transportation, disposal, release or threatened release of any Hazardous
Substances on, under, about or from the Property by any prior owners or
occupants of the Property or (c) any actual or threatened litigation or
claims of any kind by any person relating to such matters; and (3)
except as previously disclosed to and acknowledged by Lender in writing,
(a) neither Grantor nor any tenant, contractor, agent or other
authorized user of the Property (an "occupant") shall use, generate,
manufacture, store, treat, refine, transport, dispose of or release any
Hazardous Substances on, under, about or from the Property or (b) if any
such activity occurs, any such activity shall be conducted in compliance
with all applicable federal, state and local laws, regulations and
ordinances, including, without limitation, all Environmental Laws. The
representations and warranties contained herein are based on Grantor's
due diligence in investigating the Property for Hazardous Substances.
Grantor and any occupants at the Property shall exercise extreme care in
handling Hazardous Substances and, if Grantor or any occupant uses or
encounters any Hazardous Substances at the Property, Grantor shall, at
its own cost and expense, in addition to complying with all applicable
federal, state and local laws, regulations and ordinances, including,
without limitation, all Environmental Laws, undertake any and all
preventive, investigatory or remedial action (including emergency
response, removal, containment and other remedial action) necessary to
prevent or minimize (a) property damage (including damage to Grantor's
or any occupant's own property), (b) personal injury, (c) damage to the
environment or (d) the threat of any such damage or injury, in each
case, by reason of any release of or exposure to any Hazardous
Substances at the Property or the operations of Grantor of any occupant
at the Property.
Grantor authorizes Lender and its agents to enter upon the Property to
make such inspections and tests, at Grantor's expense, as Lender may
deem appropriate to determine compliance of the Property with this
section of this Mortgage. Any inspections or tests made by Lender shall
be for Lender's purposes only and shall not be construed to create any
responsibility or liability on the part of Lender to Grantor or to any
other person. if, pursuant to the section set forth below regarding
expenditures by Lender, Lender performs any of the actions required of
Grantor under this section of the Mortgage, Lender shall not, by reason
of such performance, be deemed to be assuming any responsibility of
Grantor under any Environmental Law or to any third party.
Grantor shall immediately notify Lender upon becoming aware of any of
the following: (a) any spill, release or disposal of any Hazardous
Substances at the Property or in connection with any of operations at
the Property, if such spill, release or disposal must be reported to any
governmental authority under applicable Environmental Laws; (b) any
contamination, or imminent threat of contamination, of the Property by
any Hazardous Substances or any violation of Environmental Laws in
connection with the Property or any operations conducted at the
Property; (c) any order, notice of violation, fine, penalty or other
similar action by any governmental authority relating to Hazardous
Substances, Environmental Laws, the Property or the operations conducted
at the Property; (d) any judicial or administrative investigation or
proceeding relating to Hazardous Substances, Environmental Laws, the
Property or the operations conducted at the Property; (e) any matters
relating to Hazardous Substances or Environmental Laws that would give a
reasonably prudent lender cause to be concerned that the value of
Lender's security interest in the Property may be reduced or threatened
or that may impair, or threaten to impair, Grantor's ability to perform
any of its obligations under this Mortgage when such performance is due.
Grantor shall deliver to Lender, at Lender's request, copies of any and
all documents in Grantor's possession (or to which it has access)
relating to Hazardous Substances, Environmental Laws, the Property or
the operations conducted at the Property, including, without limitation,
the results of laboratory analyses, site assessments or studies,
environmental audit reports and other consultants' studies and reports.
Grantor hereby: (1) releases and waives any future claims against any
Indemnified Person (as defined in the Indemnity provision in the
MISCELLANEOUS PROVISIONS section below) for indemnity or contribution in
the event Grantor becomes liable for cleanup or other costs under any
Environmental Laws; and (2) agrees to indemnify and hold harmless each
Indemnified person against any and all obligations, actions, judgments,
suits, claims, losses, liabilities, damages, penalties, disbursements,
costs and expenses, of any kind or nature, which any Indemnified Person
may directly or indirectly sustain or suffer resulting from, relating
to, arising out of or arising as a consequence of (a) any breach of this
section of the Mortgage, (b) any use, generation, manufacture, storage,
treatment, refinement, transportation, disposal, release or threatened
release of any Hazardous Substances occurring during or prior to
Grantor's ownership of the Property, whether or not the same was or
should have been know to Grantor, (c) any investigatory or remedial
action involving the Property, the operations conducted at the Property
or any other operations of Grantor or any occupant at the Property that
is required by any Environmental Laws and (d) the contamination of the
Property by any Hazardous Substances, by any means whatsoever
(including, without limitation, any migration of any Hazardous Substance
onto the Property, present or future).
The provisions of this section of the Mortgage, including the obligation
to indemnify, shall survive the payment of the Indebtedness and the
satisfaction and reconveyance of the lien of this Mortgage and shall not
be affected by Lender's or any Indemnified person's acquisition of any
interest in the Property, whether by foreclosure or otherwise.
Nuisance, Waste. Grantor shall not cause, conduct or permit any
nuisance nor commit, permit, or suffer any stripping of or waste on or
to the Property or any portion of the Property. Without limiting the
generality of the foregoing, Grantor will not remove, or grant to any
other party the right to remove, any timber, minerals (including oil and
gas), coal, clay, scoria, soil, gravel or rock products without Lender's
prior written consent.
Removal of Improvements. Grantor shall not demolish or remove any
Improvements from the Real Property without Lender's prior written
consent. As a condition to the removal of any Improvements, Lender may
require Grantor to make arrangements satisfactory to Lender to replace
such Improvements with Improvements of at least equal value.
Lender's Right to Enter. Lender and Lender's agents and representatives
may enter upon the Real property at all reasonable times to attend to
Lender's interests and to inspect the Real Property for purposes of
Grantor's compliance with the terms and conditions of this Mortgage.
Compliance with Governmental Requirements. Grantor shall promptly
comply with all laws, ordinances, and regulations, now or hereafter in
effect, of all governmental authorities applicable to the use or
occupancy of the Property, including without limitation, the Americans
with Disabilities Act. Grantor may contest in good faith any such law,
ordinance, or regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Grantor has notified Lender in
writing prior to doing so and so long as, in Lender's sole opinion,
Lender's interests in the Property are not jeopardized. Lender may
require Grantor to post adequate security or a surety bond, reasonably
satisfactory to Lender, to protect Lender's interest.
Duty to Protect. Grantor agrees neither to abandon nor leave unattended
the Property. Grantor shall do all other acts, in addition to those
acts set forth above in this section, which from the character and use
of the Property are reasonably necessary to protect and preserve the
Property.
DUE ON SALE _ CONSENT BY LENDER. Lender may, at Lender's option, declare
immediately due and payable all sums secured by this Mortgage upon the sale
or transfer, without Lender's prior written consent, of all or any part of
the Real Property, or any interest in the Real Property. A "sale or
transfer" means the conveyance of Real Property or any right, title or
interest in the Real Property; whether legal, beneficial or equitable;
whether voluntary or involuntary; whether by outright sale, deed installment
sale contract, land contract, contract for deed, leasehold interest with a
term greater than three (3) years, lease-option contract, or by sale,
assignment, or transfer of any beneficial interest in or to any land trust
holding title to the Real Property, or by any other method of conveyance of
an interest in the Real Property. If any Grantor is a corporation,
partnership or limited liability company, transfer also includes any change
in ownership of more than twenty-five percent (25%) of the voting stock,
partnership interests or limited liability company interests, as the case
may be, of such Grantor. However, this option shall not be exercised by
Lender if such exercise is prohibited by federal law or by Illinois law.
TAXES AND LIENS. The following provisions relating to the taxes and liens
on the Property are part of this Mortgage:
Payment. Grantor shall pay when due (and in all events prior to
delinquency) all taxes, payroll taxes, special taxes, assessments, water
charges and sewer service charges levied against or on account of the
Property, and shall pay when due all claims for work done on or for
services rendered or material furnished to the Property. Grantor shall
maintain the Property free of any liens having priority over or equal to
the interest of Lender under this Mortgage, except for those liens
specifically agreed to in writing by Lender, and except for the lien of
taxes and assessments not due as further specified in the Right to
Contest paragraph.
Right to Contest. Grantor may withhold payment of any tax, assessment,
or claim in connection with a good faith dispute over the obligation to
pay, so long as Lender's interest in the Property is not jeopardized.
If a lien arises or is filed as a result of nonpayment, Grantor shall
within fifteen (15) days after the lien arises, or if requested by
Lender, deposit with Lender cash or a sufficient corporate surety bond
or other security satisfactory to Lender in an amount sufficient to
discharge the lien plus any costs and attorneys' fees, or other charges
that could accrue as a result of a foreclosure or sale under the lien.
In any contest, Grantor shall defend itself and Lender shall satisfy any
adverse judgement before enforcement against the Property. Grantor
shall name Lender as an additional obligee under any surety bond
furnished in the contest proceedings.
Evidence of Payment. Grantor shall upon demand furnish to Lender
satisfactory evidence of payment of the taxes or assessments and shall
authorize the appropriate governmental official to deliver to Lender at
any time a written statement of the taxes and assessments against the
Property.
Notice of Construction. Grantor shall notify Lender at least fifteen
(15) days before any work is commenced, any services are furnished, or
any materials are supplied to the Property, if any mechanic's lien,
materialmen's lien, or other lien could be asserted on account of the
work, services or materials. Grantor will upon request of Lender
furnish to Lender advance assurances satisfactory to Lender that Grantor
can and will pay the cost of such improvements.
PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring
the Property are a part of this Mortgage:
Maintenance of Insurance. Grantor shall procure and maintain policies
of fire insurance with standard extended coverage endorsements on a
replacement basis for the full insurable value covering all Improvements
on the Real Property in an amount sufficient to avoid application of any
coinsurance clause, and with a standard mortgagee clause in favor of
Lender. Grantor shall also procure and maintain comprehensive general
liability insurance in such coverage amounts as Lender may request with
Lender being named as additional insureds in such liability insurance
policies. Additionally, Grantor shall maintain such other insurance,
including but not limited to hazard, business interruption and boiler
insurance as Lender may require. Policies shall be written by such
insurance companies and in such form as may be reasonably acceptable to
Lender. Grantor shall deliver to Lender certificates of coverage from
each insurer containing a stipulation that coverage will not be
cancelled or diminished without a minimum of thirty (30) day's prior
written notice to Lender and not containing any disclaimer of the
insurer's liability for failure to give such notice. Each insurance
policy also shall include an endorsement providing that coverage in
favor of Lender will not be impaired in any way by any act, omission or
default of grantor or any other person. Should the Real Property be
located in an area designated by the Director of the Federal Emergency
Management Agency as a special flood hazard area, Grantor agrees to
obtain and maintain Federal Flood Insurance, if available, after notice
is given by Lender that the Property is located in a special flood
hazard area, for the full unpaid principal balance of the loan and any
prior liens on the property securing the loan, up to the maximum policy
limits set under the National Flood Insurance Programs, or as otherwise
required by Lender, and to maintain such insurance for the term of the
loan.
Application of Proceeds. Grantor shall promptly notify Lender of any
loss or damage to the Property. Lender may make proof of loss if
Grantor fails to do so within fifteen (15) days of the casualty.
Whether or not Lender's security is impaired, Lender may, at Lender's
election, receive and retain the proceeds of any insurance and apply the
proceeds to the reduction of the Indebtedness, payment of any lien
affecting the Property, or the restoration and repair of the Property.
If Lender elects to apply the proceeds to restoration and repair,
grantor shall repair or replace the damaged or destroyed Improvements in
a manner satisfactory to Lender. Lender shall, upon satisfactory proof
of such expenditure, pay or reimburse Grantor from the proceeds for the
reasonable cost of repair or restoration so long as no Event of Default
exists. Any proceeds which have not been disbursed within 180 days
after their receipt and which Lender has not committed to the repair or
restoration of the Property shall be used first to pay any amount owing
to Lender under the Mortgage, then to pay accrued interest, and the
remainder, if any, shall be applied to the principal balance of the
Indebtedness. If Lender holds any proceeds after payment in full of the
Indebtedness, such proceeds shall be paid to Grantor as Grantor's
interests may appear.
Unexpired Insurance at Sale. Any unexpired insurance shall inure to the
benefit of, and pass to, the purchaser of the Property covered by this
Mortgage at any trustee's sale or other sale held under the provisions
of this Mortgage, or at any foreclosure sale of such Property.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Property or if Grantor fails to
comply with any provision of this Mortgage or any Related Documents,
including but not limited to Grantor's failure to discharge or pay when due
any amounts Grantor is required to discharge or pay under this Mortgage or
any Related Documents, Lender on Grantor's behalf may (but shall not be
obligated to) take any actin that Lender deems appropriate, including but
not limited to discharging or paying all taxes, liens, security interests,
encumbrances and other claims, at any time levied or placed on the Property
and paying all costs for insuring, maintaining and preserving the Property.
All such expenditures incurred or paid by Lender for such purposes will then
bear interest at the rate charged under the Note from the date incurred or
paid by Lender to the date of repayment by Grantor. All such expenses will
become a part of the Indebtedness and, at Lender's option, will (A) be
payable on demand, (B) be added to the balance of the Note and be
apportioned among and be payable with any installment payments to become due
during either (1) the term of any applicable insurance policy, (2) the
remaining term of the Note, or (3) be treated as a balloon payment which
will be due and payable at the Note's maturity. The Property also will
secure payment of these amounts. Such right shall be in addition to all
other rights and remedies to which Lender may be entitled upon the
occurrence of any Event of Default. Any such action by Lender shall not be
construed as curing any Event of Default so as to bar Lender from any remedy
that Lender otherwise would have had.
WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership
of the Property are a part of this Mortgage:
Title. Grantor warrants that: (a) Grantor holds good and marketable
title of record to the Property in fee simple, free and clear of all
liens and encumbrances other than those set forth in the Real Property
description or in any title insurance policy, title report, or final
title opinion issued in favor of, and accepted by, Lender in connection
with this Mortgage, and (b) Grantor has the full right, power, and
authority to execute and deliver this Mortgage to Lender.
Defense of Title. Subject to the exception in the paragraph above,
Grantor warrants and will forever defend the title to the Property
against the claims of all persons. In the event any action or
proceeding is commenced that questions Grantor's title or the interest
of Lender under this Mortgage, Grantor shall defend the action at
Grantor's expense. Grantor may be the nominal party in such proceeding,
but Lender shall be entitled to participate in the proceeding and to be
represented in the proceeding by counsel of Lender's own choice, and
Grantor will deliver, or cause to be delivered, to Lender such
instruments as Lender may request from time to time to permit such
participation.
Compliance with Laws. Grantor warrants that the Property and Grantor's
use of the Property complies with all existing applicable laws,
ordinances, and regulations of governmental authorities.
No Other Liens. Grantor will not, without the prior written consent of
Lender, create, place, or permit to be created or placed, or through any
act or failure to act, acquiesce in the placing of, or allow to remain,
any mortgage, voluntary or involuntary lien, whether statutory,
constitutional or contractual (except for liens for ad valorem taxes on
the Real Property which are not delinquent), security interest,
encumbrance or charge, against or covering the Property, or any part
thereof, other than as permitted in this Mortgage, regardless of whether
the same are expressly or otherwise subordinate to the liens and
security interests created by this Mortgage.
Survival of Representations and Warranties. All representations,
warranties, and agreements made by Grantor in this Mortgage shall
survive the execution and delivery of this Mortgage, shall be continuing
in nature, and shall remain in full force and effect until such time as
Grantor's Indebtedness shall be paid in full.
CONDEMNATION. The following provisions relating to condemnation proceedings
are a part of this Mortgage:
Proceedings. If any proceeding in condemnation is filed, Grantor shall
promptly notify Lender in writing, and Grantor shall promptly take such
steps as may be necessary to defend the action and obtain the award.
Grantor may be the nominal party in such proceeding, but Lender shall be
entitled to participate in the proceeding and to be represented in the
proceeding by counsel of its own choice, and Grantor will deliver or
cause to be delivered to Lender such instruments and documentation as
may be requested by Lender from time to time to permit such
participation.
Application of Net Proceeds. If all or any part of the Property is
condemned by eminent domain proceedings or by any proceeding or purchase
in lieu of condemnation, lender may at its election require that all or
any portion of the net proceeds of the award be applied to the
Indebtedness or the repair or restoration of the Property. The net
proceeds of the award shall mean the award after payment of all
reasonable costs, expenses, and attorneys' fees incurred by Lender in
connection with the condemnation.
IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The
following provisions relating to governmental taxes, fees and charges are a
part of this Mortgage:
Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall
execute such documents in addition to this Mortgage and take whatever
other action is requested by Lender to perfect and continue Lender's
lien on the Real Property. Grantor shall reimburse Lender for all
taxes, as described below, together with all expenses incurred in
recording, perfecting or continuing this Mortgage, including without
limitation all taxes, fees, documentary stamps, and other charges for
recording or registering this Mortgage.
Taxes. The following shall constitute taxes to which this section
applies: (1) a specific tax upon this type of Mortgage or upon all or
any part of the Indebtedness secured by this Mortgage; (2) a specific
tax on Grantor which Grantor is authorized or required to deduct from
payments on the Indebtedness secured by this type of Mortgage; (3) a tax
on this type of Mortgage chargeable against the Lender or the holder of
the Note; and (4) a specific tax on all or any portion of the
Indebtedness or on payments of principal and interest made by Grantor.
Subsequent Taxes. If any tax to which this section applies is enacted
subsequent to the date of this Mortgage, this event shall have the same
effect as an Event of Default, and Lender may exercise any or all of its
available remedies for an Event of Default as provided below unless
Grantor either (1) pays the tax before it becomes delinquent, or (2)
contests the tax as provided above in the Taxes and Liens section and
deposits with Lender cash or a sufficient corporate surety bond or other
security satisfactory to Lender.
ASSIGNMENT OF RENTS AND LEASES. The following provisions relating to this
Mortgage as an assignment of Rents and Leases are a part of this Mortgage:
License to Grantor. Unless and until Lender exercises its right to
collect the Rents as provided below, and so long as no Event of Default
exists, Grantor shall have a license to (a) remain in possession and
control of the Property, (b) operate and manage the Property and (c)
collect the Rents; provided that the granting of such license shall not
constitute Lender's consent to the use of cash collateral in any
bankruptcy proceedings. The foregoing license shall automatically and
immediately terminate, without notice to Grantor, upon the occurrence of
any Event of Default. After the occurrence of any Event of Default,
Lender may exercise any of the rights and remedies set forth below
and/or elsewhere in this Mortgage. Any Rents that are collected by
Grantor after the occurrence of any Event of Default shall be held in
trust for the benefit of lender.
Grantor's Representations, Warranties and Covenants. Grantor
represents, warrants and covenants that: (a) Grantor has good title to
the Leases and is entitled to receive the Rents, in each case, free and
clear of all rights, loans, liens, encumbrances, and claims, except as
disclosed to and accepted by Lender in writing; (b) Grantor has the full
right, power and authority to assign and convey the Leases and Rents to
Lender; (c) Grantor has not previously assigned or conveyed the Leases
and/or Rents to any other person or entity by any instrument now in
force; (d) Grantor will not sell, assign, encumber, or otherwise dispose
of any of Grantor's rights in the Leases and/or the Rents; (e) Grantor
will fulfill and perform its obligations under all Leases and will give
Lender prompt notice of any default in the performance of the terms of
any of the Leases by either Grantor or any tenant, together with copies
of all notices sent to or received by Grantor in connection with any
Lease; (f) Grantor will enforce the tenant's obligations under the
Leases; (g) Grantor will not, in any way, enter into any new Lease,
amend, assign, cancel, or terminate any Lease, accept a surrender of any
Lease or any leased premises, accept any payment of Rent more than one
month in advance or waive, release, discharge or compromise any Rent or
any of the obligations of the tenants under any of the Leases, in each
case, without the prior written consent of Lender; (h) Grantor will
appear in and defend or prosecute any action growing out of any Lease,
at Grantor's cost and expense; (i) there is no present default by any
tenant under any Lease; (j) all existing Leases are in full force and
effect and unmodified; (k) to the best of Grantor's knowledge, no person
or entity other than authorized tenants is in possession of all or any
part of the Property; (l) Grantor will provide copies of any and all
Leases and Lease amendments, and all records relating thereto, to Lender
upon Lender's request.
Lender's Right to Receive and Collect Rents. Subject to the license
granted to Grantor above, Lender shall have the right, at any time from
and after the occurrence of any Event of Default, to collect and receive
the Rents. For this purpose, Lender is hereby given and granted the
following rights, powers, and authority: (a) Lender may send notices to
any and all tenants of the Property advising them of this assignment and
directing all Rents to be paid directly to Lender or Lender's agent; (b)
Lender may (i) enter upon and take possession of the Property, (ii)
demand, collect and receive from the tenants (or from any other persons
liable therefor) all of the Rents of the Property, (iii) institute and
carry on all legal proceedings necessary for the protection of the
Property, including such proceedings as may be necessary to recover
possession of the Property and collect the Rents, (iv) remove any tenant
or other persons from the Property, (v) enter upon the Property to
maintain the Property and keep the same in repair, and pay the costs
therefor and of all services of all employees, including their
equipment, and of all continuing costs and expenses of maintaining the
Property in proper repair and condition and (vi) pay all taxes
assessments and water utilities and the premiums on fire and other
insurance effected on the Property; (c) Lender may do any and all things
necessary or advisable to execute and comply with all applicable laws,
rules, orders, ordinances and requirements of all governmental agencies;
(d) Lender may (i) rent or lease the whole or any part of the Property
for such term or terms and on such conditions as Lender may deem
appropriate and (ii) modify, terminate or accept the surrender of any
Leases and/or waive , release, discharge or compromise any Rent or any
obligations of any of the tenants under the Leases; (e) Lender may make
any payment including necessary costs, expenses and reasonable attorney
fees, or perform any action required of Grantor under any Lease, without
releasing Grantor from the obligation to do so and without notice to or
demand on Grantor; (f) Lender may engage such agent or agents as Lender
may deem appropriate, either in Lender's name or in Grantor's name, to
rent and manage the Property, including the collection and application
of Rents; and (g) Lender may do all such other things and acts with
respect to the Property, the Leases and the Rents as lender may deem
appropriate and may act exclusively and solely in the place and stead of
Grantor. Lender has all of the powers of Grantor for the purposes
stated above. Lender shall not be required to do any of the foregoing
acts or things and the fact that Lender shall have performed one or more
of the foregoing acts or things shall not require Lender to do any other
specific act or thing. The foregoing rights and remedies of Lender are
in addition to and not in limitation of the rights and remedies of
Lender under the RIGHTS AND REMEDIES UPON DEFAULT section of this
Mortgage, including the rights and remedies set forth in the "Collect
Rents" provision, all of which rights and remedies are incorporated into
this ASSIGNMENT OF RENTS section.
Application of Rents. Any Rents received by Lender shall be applied
against the Indebtedness (including Lender's costs and expenses) in such
order or manner as Lender shall elect in its sole discretion.
Right to Rely. Grantor hereby irrevocably authorizes and directs the
tenants under the Leases to pay Rents to Lender upon written demand by
Lender, without further consent of Grantor. The tenants may rely upon
any written statement delivered by Lender to the tenants. Any such
payment to Lender shall constitute payment to Grantor under the Leases.
The provisions of this paragraph are intended solely for the benefit of
the tenants and shall never inure to the benefit of Grantor or any
person claiming through or under Grantor, other than a tenant who has
not received such notice. The assignment of Rents and Leases set forth
herein is not contingent upon any notice or demand by Lender to the
tenants.
Lender in Possession. Lender's acceptance of this Mortgage shall not,
prior to entry upon and taking possession of the Property by Lender, be
deemed to constitute Lender a "mortgagee in possession," nor obligate
Lender to: (a) appear in or defend any proceedings relating to any of
the Leases, the Rents or to the Property; (b) take any action hereunder;
(c) expend any money, incur any expenses or perform any obligations or
liability under the Leases; or (d) assume any obligation for any
deposits delivered to Grantor by any tenant and not delivered to Lender.
Lender shall not be liable for any injury or damage to any person or
property in or about the Property. Grantor indemnifies Lender and holds
it harmless from all liability or damages which Lender may incur under
any Lease and from all claims and demands which may be asserted against
Lender by reason of any alleged obligation on its part to perform any
term of any Lease.
SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating
to this Mortgage as a security agreement are a part of this Mortgage:
Security Agreement. This instrument shall constitute a Security
Agreement to the extent any of the Property constitutes fixtures, and
Lender shall have all of the rights of a secured party under the Uniform
Commercial Code as amended from time to time.
Security Interest. Upon request by Lender, Grantor shall execute
financial statements and take whatever other action is requested by
Lender to perfect and continue Lender's security interest in the Rents
and Personal Property. In addition to recording this Mortgage in the
real property records, Lender may, at any time and without further
authorization from Grantor, file executed counterparts, copies or
reproductions of this Mortgage as a financing statement. Grantor shall
reimburse Lender for all expenses incurred in perfecting or continuing
this security interest. Upon the occurrence of any Event of Default,
Grantor shall assemble the Personal Property in a manner and at a place
reasonably convenient to Grantor and Lender and make it available to
Lender within three (3) days after receipt of written demand from
Lender.
Addresses. The mailing addresses of Grantor (debtor) and Lender
(secured party) from which information concerning the security interest
granted by this Mortgage may be obtained (each as required by the
Uniform Commercial Code) are as stated on the first page of this
Mortgage.
FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions relating to
further assurances and attorney-in-fact are a part of this Mortgage:
Further Assurances. At any time, and from time to time, upon request of
Lender, Grantor will make, execute and deliver, or will cause to be
made, executed or delivered, to Lender or to Lender's designee, and when
requested by Lender, cause to be filed, recorded, refiled, or
rerecorded, as the case may be, at such time and in such offices and
places as Lender may deem appropriate, any and all such mortgages, deeds
of trust, security deeds, security agreements, financing statements,
continuation statements, instruments of further assurance, certificates,
and other documents as may, in the sole opinion of Lender, be necessary
or desirable in order to effectuate, complete, perfect, continue, or
preserve (1) Grantor's obligations under the Note, this Mortgage, and
the Related Documents, and (2) the liens and security interests created
by this Mortgage on the Property, whether now owned or hereafter
acquired by Grantor. Unless prohibited by law or Lender agrees to the
contrary in writing, Grantor shall reimburse Lender for all costs and
expenses incurred in connection with the matters referred to in this
paragraph.
Attorney-in-Fact. If Grantor fails to do any of the things referred to
in the preceding paragraph, Lender may do so for and in the name of
Grantor and at Grantor's expense. For such purposes, Grantor hereby
irrevocably appoints Lender as Grantor's attorney-in-fact for the
purpose of making, executing, delivering, filing, recording, and doing
all other things as may be necessary or desirable, in Lender's sole
opinion, to accomplish the matters referred to in the preceding
paragraph.
FULL PERFORMANCE. If Grantor pays all the Indebtedness when due, and
otherwise performs all the obligations imposed upon Grantor under this
Mortgage, Lender shall execute and deliver to Grantor a suitable
satisfaction of this Mortgage and suitable statements of termination of any
financing statement on file evidencing Lender's security interest in the
Rents and the Personal Property. Grantor will pay, if permitted by
applicable law, any reasonable termination fee as determined by Lender from
time to time.
REINSTATEMENT OF SECURITY INTEREST. If payment is made by Grantor, whether
voluntarily or otherwise, or by guarantor or by any third party, on the
Indebtedness and thereafter Lender is forced to remit the amount of that
payment (A) to Grantor's trustee in bankruptcy or to any similar person
under any federal or state bankruptcy law or law for the relief of debtors,
(B) by reason of any judgment, decree or order of any court or
administrative body having jurisdiction over Lender or any of Lender's
property, or (C) by reason of any settlement or compromise of any claim made
by Lender with any claimant (including without limitation Grantor), the
Indebtedness shall be considered unpaid for the purpose of enforcement of
this Mortgage and this Mortgage shall continue to be effective or shall be
reinstated, as the case may be, notwithstanding any cancellation of this
Mortgage or of any note or other instrument or agreement evidencing the
Indebtedness and the Property will continue to secure the amount repaid or
recovered to the same extent as if that amount never had been originally
received by Lender, and Grantor shall be bound by any judgement, decree,
order, settlement or compromise relating to the Indebtedness or to this
Mortgage.
EVENTS OF DEFAULT. Each of the following, at Lender's option, shall
constitute an Event of Default under this Mortgage:
Payment Default. Grantor fails to make any payment when due under the
Indebtedness.
Default on Other Payments. Failure of Grantor within the time required
by this Mortgage to make any payment for taxes or insurance, or any
other payment necessary to prevent filing of or to effect discharge of
any lien.
Other Defaults. Grantor fails to comply with or to pay or perform any
other term, obligation, covenant or condition contained in this
Agreement or in any of the Related Documents or to comply with or to pay
or perform any term, obligation, covenant or condition contained in any
other agreement between Lender and Grantor or between Grantor and any
affiliate of BANK ONE CORPORATION.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Grantor or on Grantor's behalf under this
Mortgage, the Note, or the Related Documents is false or misleading in
any material respect, either now or at the time made or furnished or
becomes false or misleading at any time thereafter.
Defective Collateralization. This Mortgage or any of the Related
Documents ceases to be in full force and effect (including failure of
any collateral document to create a valid and perfected security
interest or lien) at any time and for any reason.
Insolvency. The dissolution or termination of Grantor's existence as a
going business, the insolvency of Grantor, the appointment of a receiver
for any part of Grantor's property, any assignment for the benefit of
creditors, any type of creditor workout , or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against
Grantor.
Creditor or Forfeiture Proceedings. Commencement of foreclosure,
replevin, repossession, attachment, levy, execution, or forfeiture
proceedings, whether by judicial proceeding, self-help, or any other
method, by any creditor of Grantor, or by any governmental agency
against the Collateral or any other assets of Grantor. However, this
Event of Default shall not apply if there is a good faith dispute by
Grantor as to the validity or reasonableness of the claim which is the
basis of the creditor or forfeiture proceeding and if Grantor gives
Lender written notice of the creditor or forfeiture proceeding and
deposits with Lender monies or surety bond for the creditor or
forfeiture proceeding, in an amount determined by Lender, in its sole
discretion, as being an adequate reserve or bond for the dispute.
Breach of Other Agreement. Any breach by Grantor under the terms of any
other agreement between Grantor and Lender that is not remedied within
any grace period provided therein, including without limitation any
agreement concerning any indebtedness or other obligation of Grantor to
Lender, whether existing now or later.
Adverse Change. A material adverse change occurs in Grantor's financial
condition, or Lender believes the prospect of payment or performance of
the Indebtedness is impaired.
Events Affecting Guarantor. Any of the preceding Events of Default
occurs with respect to any guarantor of the Indebtedness as if the word
"guarantor" were substituted for the world "Grantor" in such Event of
Default, or any guarantor dies or becomes incompetent, or revokes or
disputes the validity of, or liability under, any guaranty of the
Indebtedness.
Insecurity. Lender in good faith believes itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default
and at any time thereafter, Lender, at Lender's option, may exercise any one
or more of the following rights and remedies, in addition to any other
rights or remedies provided by law:
Accelerate Indebtedness. Lender shall have the right at its option to
without notice to Grantor to declare the entire Indebtedness immediately
due and payable, including any prepayment penalty which Grantor would be
required to pay.
UCC Remedies. With respect to all or any part of the Personal Property,
Lender shall have all the rights and remedies of a secured party under
the Uniform Commercial Code.
Collect Rents. Lender shall have the right, without notice to Grantor,
to take possession of the Property and collect the Rents, including
amounts past due and unpaid, and apply the net proceeds, over and above
Lender's costs, against the Indebtedness. In furtherance of this right,
Lender may require any tenant or other user of the Property to make
payments of rent or use fees directly to Lender. If the Rents are
collected by Lender, then Grantor irrevocably designates Lender as
Grantor's attorney-in-fact to endorse instruments received in payment
thereof in the name of Grantor and to negotiate the same and collect the
proceeds. Payments by tenants or other users to Lender in response to
Lender's demand shall satisfy the obligations for which the payments are
made, whether or not any proper grounds for the demand existed. Lender
may exercise its rights under this subparagraph either in person, by
agent, or through a receiver.
Mortgagee in Possession. Lender shall have the right to be placed as
mortgagee in possession or to have a receiver appointed to take
possession of all or any part of the Property, with the power to protect
and preserve the Property, to operate the Property preceding foreclosure
or sale, and to collect the Rents from the Property and apply the
proceeds, over and above the cost of the receivership, against the
Indebtedness. The mortgagee in possession or receiver may serve without
bond if permitted by law. Lender's right to the appointment of a
receiver shall exist whether or not the apparent value of the Property
exceeds the Indebtedness by a substantial amount. Employment by Lender
shall not disqualify a person from serving as a receiver.
Judicial Foreclosure. Lender may obtain a judicial decree foreclosing
Grantor's interest in all or any part of the Property.
Deficiency Judgment. If permitted by law, Lender may obtain a judgment
for any deficiency remaining in the Indebtedness due to Lender after
application of all amounts received from the exercise of the rights
provided in this section.
Other Remedies. Lender shall have al other rights and remedies provided
in this Mortgage or the Note or available at law or in equity.
Sale of the Property. To the extent permitted by applicable law,
Grantor hereby waives any and all right to have the Property marshalled.
In exercising its rights and remedies, Lender shall be free to sell all
or any part of the Property together or separately, in one sale or by
separate sales. Lender shall be entitled to bid at any public sale on
all or any portion of the Property.
Notice of Sale. Lender shall give Grantor reasonable notice of the time
and place of any public sale of the Personal Property or of the time
after which any private sale or other intended disposition of the
Personal Property is to be made. Reasonable notice shall mean notice
given at least ten (10) days before the time of the sale or disposition.
Election of Remedies. Election by Lender to pursue any remedy will not
bar any other remedy, and an election to make expenditures or to take
action to perform an obligation of Grantor under this Mortgage, after
Grantor's failure to perform, shall not affect Lender's right to declare
a default and exercise its remedies. Nothing under this Mortgage or
otherwise shall be construed so as to limit or restrict the rights and
remedies available to Lender following an Event of Default, or in any
way to limit or restrict the rights and ability of Lender to proceed
directly against Grantor and/or against any other co-maker, guarantor,
surety or endorser and/or to proceed against any other collateral
directly or indirectly securing the Indebtedness.
Attorneys' Fees; Expenses. If Lender institutes any suit or action to
enforce any of the terms of this Mortgage, Lender shall be entitled to
recover such sum as the court may adjudge reasonable attorneys' fees at
trial and upon any appeal. Whether or not any court action in involved,
and to the extent not prohibited by law, all reasonable expenses Lender
incurs that in Lender's opinion are necessary at any time for the
protection of its interest or the enforcement of its rights shall become
a part of the Indebtedness payable on demand and shall bear interest at
the Note rate from the date of the expenditure until repaid. Expenses
covered by this paragraph include, without limitation, however subject
to any limits under applicable law, Lender's attorneys' fees and
Lender's legal expenses, whether or not there is a lawsuit, including
attorneys' fees and expenses for bankruptcy proceedings (including
efforts to modify or vacate any automatic stay or injunction), appeals,
and any anticipated post-judgment collection services, the cost of
searching records, obtaining title reports (including foreclosure
reports), surveyors' reports, and appraisal fees and title insurance, to
the extent permitted by applicable law. Grantor also will pay any court
costs, in addition to all other sums provided by law.
NOTICES. Any notice required to be given under this Mortgage, including
without limitation any notice of default and any notice of sale shall be
given in writing, and shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law), when
deposited with a nationally recognized overnight courier, or, if mailed,
when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the
beginning of this Mortgage. All copies of notices of foreclosure from the
holder of any lien which has priority over this Mortgage shall be sent to
Lender's address, as shown near the beginning of this Mortgage. Any party
may change its address for notices under this Mortgage by giving formal
written notice to the other parties, specifying that the purpose of the
notice is to change the party's address. For notice purposes, Grantor
agrees to keep Lender informed at all times of Grantor's current address.
Unless otherwise provided or required by law, if there is more than one
Grantor, any notice given by Lender to any Grantor is deemed to be notice
given to all Grantors.
ARBITRATION. Undersigned and Lender agree that all disputes, claims and
controversies between them whether individual, joint, or class in nature,
arising from this document or otherwise, including without limitation
contract and tort disputes, shall be arbitrated pursuant to the Rules of the
American Arbitration Association in effect at the time the claim is filed,
upon request of either party. No act to take or dispose of any Collateral
or Property (as defined herein or in any Related Document) securing this
document shall constitute a waiver of this arbitration agreement or
be prohibited by this arbitration agreement. This includes, without
limitation, obtaining injunctive relief or a temporary restraining order;
invoking a power of sale under any deed of trust or mortgage; obtaining a
writ of attachment or imposition of a receiver; or exercising nay rights
relating to personal property, including taking or disposing of such
property with or without judicial process pursuant to applicable law. Any
disputes, claims, or controversies concerning the lawfulness or
reasonableness of any act, or exercise of any right, concerning any
Collateral or Property securing this document, including any claim to
rescind, reform, or otherwise modify any agreement relating to the
Collateral or Property securing this document, shall also be arbitrated,
provided however that no arbitrator shall have the right or the power to
enjoin or restrain any act of any party. Judgment upon any award rendered
by any arbitrator may be entered in any court having jurisdiction. Nothing
in this document shall preclude any party from seeking equitable relief from
a court of competent jurisdiction. The statute of limitations, estoppel,
waiver, laches, and similar doctrines which would otherwise be applicable in
an action brought by a party shall be applicable in any arbitration
proceeding, and the commencement of an arbitration proceeding shall be
deemed the commencement of an action for these purposes. The Federal
Arbitration Act shall apply to the construction, interpretation, and
enforcement of this arbitration provision.
JURY WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON
CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG THE UNDERSIGNED AND LENDER
ARISING OUT OF OR IN ANY WAY RELATED TO THIS DOCUMENT, THE RELATED
DOCUMENTS, OR ANY RELATIONSHIP BETWEEN OR AMONG THE UNDERSIGNED AND LENDER.
THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE FINANCING
EVIDENCED BY THIS DOCUMENT AND THE RELATED DOCUMENTS.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part
of this Mortgage:
Amendments. This Mortgage, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Mortgage. No alteration of or amendment
to this Mortgage shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound by the alteration
or amendment.
Annual Reports. If the Property is used for purposes other than
Grantor's residence, Grantor shall furnish to Lender, upon request, a
certified statement of net operating income received from the Property
during Grantor's previous fiscal yea in such form and detail as Lender
shall require. "Net operating income" shall mean all cash receipts from
the Property less all cash expenditures made in connection with the
operation of the Property.
Caption Headings. Caption headings in this Mortgage are for convenience
purposes only and are not to be used to interpret or define the
provisions of this Mortgage.
Governing Law. This Mortgage will be governed by, construed and
enforced in accordance with federal law and the laws of the State of
Illinois. This Mortgage has been accepted by Lender in the State of
Illinois.
Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's
request to submit to the jurisdiction of the courts of Winnebago County,
State of Illinois.
No Waiver by Lender. Lender shall not be deemed to have waived any
rights under this Mortgage unless such waiver is given in writing and
signed by Lender. No delay or omission on the part of Lender in
exercising any right shall operate as a waiver of such right or any
other right. A waiver by Lender of a provision of this Mortgage shall
not prejudice or constitute a waiver of Lender's right otherwise to
demand strict compliance with that provision or any other provision of
this Mortgage. No prior waiver by Lender, nor any course of dealing
between Lender and Grantor, shall constitute a waiver of any of Lender's
rights or of any of Grantor's obligations as to any future transactions.
Whenever the consent of Lender is required under this Mortgage, the
granting of such consent by Lender in any instance shall not constitute
continuing consent to subsequent instances where such consent is
required and in all cases such consent may be granted or withheld in the
sole discretion of Lender.
Indemnity. Grantor hereby agrees to indemnify, defend and hold harmless
Lender, and its officers, directors, employees, agents and
representatives (each an "Indemnified Person"), from and against any and
all liabilities, obligations, claims, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
or nature (collectively, the "Claims") which may be imposed on, incurred
by or asserted against any Indemnified Person (whether or not caused by
an Indemnified Person's sole, concurrent or contributory negligence)
arising in connection with the Related Documents, the Indebtedness or
the Property (including, without limitation, the enforcement of the
Related Documents and the defense of any Indemnified Person's action
and/or inaction in connection with the Related Documents), except to the
limited extent that the Claims against the Indemnified Person are
proximately caused by such Indemnified Person's gross negligence or
willful misconduct. This indemnification provided for in this section
shall survive the termination of this Mortgage and shall extend and
continue to benefit each individual or entity who is, becomes or has any
time been an Indemnified Person hereunder.
Information Waiver. Lender may provide, without any limitation
whatsoever, to any one or more purchasers, potential purchasers, or
affiliates of BANK ONE CORPORATION, any information or knowledge Lender
may have about Grantor or about any matter relating to this Mortgage and
Grantor hereby waives any right to privacy Grantor may have with respect
to such matters.
Severability. If a court of competent jurisdiction finds any provision
of this Mortgage to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision
illegal, invalid, or unenforceable as to any other circumstance. If
feasible, the offending provision shall be considered modified so that
it become legal, valid and enforceable. If the offending provision
cannot be so modified, it shall be considered deleted from this
Mortgage. Unless otherwise required by law, the illegality, invalidity,
or unenforceability of any provision of this Mortgage shall not affect
the legality, validity or enforceability of any other provision of this
Mortgage.
Merger. There shall be no merger of the interest or estate created by
this Mortgage with any other interest or estate in the Property at any
time held by or for the benefit of Lender in any capacity, without the
written consent of Lender.
Successors and Assigns. Subject to any limitations stated in this
Mortgage on transfer of Grantor's interest, this Mortgage shall be
binding upon and inure to the benefit of the parties, their successors
and assigns. If ownership of the Property becomes vested in a person
other than Grantor, Lender, without notice to Grantor, may deal with
Grantor's successors with reference to this Mortgage and the
Indebtedness by way of forbearance or extension without releasing
Grantor from the obligations of this Mortgage or liability under the
Indebtedness.
Time is of the Essence. Time is of the essence in the performance of
this Mortgage.
Waiver of Homestead Exemption. Grantor hereby releases and waives all
rights and benefits of the homestead exemption laws of the State of
Illinois as to all Indebtedness secured by this Mortgage.
Waiver of Right of Redemption. NOTWITHSTANDING ANY OF THE PROVISIONS TO
THE CONTRARY CONTAINED IN THIS MORTGAGE, GRANTOR HEREBY WAIVES, TO THE
EXTENT PERMITTED UNDER 735 ILCS 5/15-1601(b) OR ANY SIMILAR LAW EXISTING
AFTER THE DATE OF THIS MORTGAGE, ANY AND ALL RIGHTS OF REDEMPTION ON
GRANTOR'S BEHALF AND ON BEHALF OF ANY OTHER PERSONS PERMITTED TO REDEEM
THE PROPERTY.
DEFINITIONS. The following capitalized words and terms shall have the
following meanings when used in this Mortgage. Unless specifically stated
to the contrary, all references to dollar amounts shall mean amounts in
lawful money of the United States of America. Words and terms used in the
singular shall include the plural, and the plural shall include the singular
as the context may require. Words and terms not otherwise defined in this
Mortgage shall have the meanings attributed to such terms in the Uniform
Commercial Code to the extent that this Mortgage encumbers Personal Property
that is governed by the Illinois Uniform Commercial Code:
Borrower. The word "Borrower" means Abidon, Inc., and all other persons
and entities signing the Note in whatever capacity.
Environmental Laws. The words "Environmental Laws" mean any and all
state, federal and local statutes, regulations and ordinances relating
to the protection of human health or the environment, including without
limitation the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq.
("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986,
Pub. L. No. 99-499 ("▇▇▇▇"), the Hazardous Materials Transportation Act,
49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901, et seq., or other applicable state or
federal laws, rules, or regulations adopted pursuant thereto.
Event of Default. The words "Event of Default" mean any of the Events
of Default set forth in this Mortgage in the Events of Default section
of this Mortgage.
Grantor. The word "Grantor" means Abidon, Inc.
Hazardous Substances. The words "Hazardous Substances" mean materials
that, because of their quantity, concentration or physical, chemical or
infectious characteristics, may cause or pose a present or potential
hazard to human health or the environment when improperly used, treated,
stored, disposed of, generated, manufactured, transported or otherwise
handled. The words "Hazardous Substances" are used in their very
broadest sense and include without limitation any and all hazardous or
toxic substances, materials or waste as defined by or listed under the
Environmental Laws. The term "Hazardous Substances" also includes,
without limitation, petroleum and petroleum by-products or any fraction
thereof and asbestos.
Improvements. The word "Improvements" means all existing and future
improvements, buildings, structures, mobile homes affixed on the Real
Property, facilities, additions, replacements and other construction on
the Real Property.
Indebtedness. The word "Indebtedness" means all principal, interest,
and other amounts, costs and expenses payable under the Note or Related
Documents, together with all renewals of, extensions of, modifications
of, consolidations of and substitutions for the Note or Related
Documents and any amounts expended or advanced by Lender to discharge
Grantor's obligations or expenses incurred by Lender to enforce
Grantor's obligations under this Mortgage, together with interest on
such amounts as provided in this Mortgage. In addition, and without
limitation, the term "Indebtedness" includes all amounts identified in
the Cross-Collateralization paragraph of this Mortgage. However, the
term "Indebtedness" is subject to the limitations identified in the
Maximum Lien paragraph of this Mortgage.
Lender. The word "Lender" means Bank One, Illinois, N.A., its
successors and assigns.
Mortgage. The word "Mortgage" means this Mortgage between Grantor and
Lender.
Note. The word "Note" means the promissory note executed by the
Borrower to the Lender in the original principal amount of $111,827.58,
dated December 11, 2001, together with all renewals of, extensions of,
modifications of, refinancings of, consolidations of, and substitutions
for such Note.
Personal Property. The words "Personal Property" mean all equipment,
fixtures, and other articles of personal property now or hereafter owned
by Grantor, and now or hereafter attached or affixed to the Real
Property; together with all accessions, parts, and additions to, all
replacements of, and all substitutions for, any of such property; and
together with all proceeds (including without limitation all insurance
proceeds and refunds of premiums) from any sale or other disposition of
the Property.
Property. The word "Property" means collectively the Real Property and
the Personal Property.
Real Property. The words "Real Property" mean the real property,
interests and rights, as further described in this Mortgage.
Related Documents. The words "Related Documents" mean all promissory
notes, credit agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust, security
deeds, collateral mortgages, and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection
with the Indebtedness.
Rents. The word "Rents" means all present and future rents, revenues,
income, issues, royalties, profits, bonuses, accounts receivable, cash,
security deposits, advance rentals, and other payments and/or benefits,
of every kind and nature, derived from the Property, including Grantor's
right to enforce the Leases and to receive and collect payments and
proceeds under the Leases.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND
GRANTOR AGREES TO ITS TERMS.
GRANTOR:
ABIDON, INC.
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President of
Abidon, Inc.
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary of
Abidon, Inc.
EXHIBIT "A" which is attached to this Mortgage and made a part of this
Mortgage as if fully set forth herein.
Parcel I
Lot One (1) as designated upon the Plat of Rockford Investors Subdivision,
being a part of the Northwest Quarter of Section 28, Township 44 North,
Range 2 East of the Third Principal Meridian, the Plat of which is recorded
in Book 37 of Plats on Page 137B; situated in the County of Winnebago and
State of Illinois.
Parcel II
Part of the Northwest Quarter (1/4) OF Section Twenty-eight (28), Township
Forty-four (44) North, Range Two (2) East of the Third (3rd) Principal
Meridian bounded and described as follows, to-wit: Commencing at the
Northwest corner of State View Subdivision, being a subdivision of part of
the North Half (1/2) of said Section twenty-eight (28), the plat of which is
recorded in Book 31 of Plats on page 92 in the Recorder's Office of
Winnebago County, State of Illinois; thence South 0 degrees 0'0" East, Four
Hundred Seventy-five and Thirty Hundredths (475.30) feet along the West line
of said State View Subdivision to the North line of the Plat of Hy-Kit ▇▇▇▇▇
Acres, being a subdivision of part of the North Half (1/2) of said Section
Twenty-eight (28) , the plat of which is recorded in said Recorder's Office;
thence Westerly and Southerly along the Northerly and Westerly courses and
distances of said Plat of Hy-Kit ▇▇▇▇▇ Acres, to the Northwest corner of Lot
5 as designated upon said Plat of Hy-Kit- ▇▇▇▇▇ Acres; thence North 0
degrees 0'0" East, Five Hundred Nine and Twenty-six Hundredths (509.26) feet
along the West line of said plat of Hy-Kit ▇▇▇▇▇ Acres extended, to the
Southerly line of the premises conveyed by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ et al to the
State of Illinois, recorded in Book 1156 of Deeds on page 493 in said
Recorder's Office; thence North 75 degrees 54' 40" East, Three Hundred
Seventy-three and forty-four Hundredths (373.44) feet along said Southerly
line to the place of beginning; situated in the County of Winnebago and
State of Illinois. EXCEPTING THEREFROM the following described real estate:
Lot One (1) as designated upon the Plat of Rockford Investors Subdivision,
being a part of the Northwest Quarter of Section 28, Township 44 North,
Range 2 East of the Third Principal Meridian, the plat of which is recorded
in Book 37 of Plats on Page 137B; situated in the County of Winnebago and
State of Illinois.
