REC'D PAYMENT- 00-00-0000
XXXXX XX XXXXX XXXXXXXX PER CLERK MORTGAGE AND SECURITY AGREEMENT
XXX XXXXXX
XXXXXX XX XXXXXXXXXX XXXXXXXXXX XXXXXX, XX
Mortgagor: Xxxxx X. Xxxxxx ("Mortgagor")
Family Practice Specialists
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Mortgagee: Envirometrics, Inc. ("Mortgagee")
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
THIS MORTGAGE AND SECURITY AGREEMENT (this "Mortgage") is made and entered
into to be effective as of the 19th day of December, 1996, by Mortgagor to
Mortgagee pursuant to the terms of that certain Promissory Note, dated as of
even date herewith, between Mortgagee and Mortgagor regarding a loan in the
original principal amount of $230,000.00 (the "Note"). Unless otherwise defined
herein, all capitalized terms shall have the meaning set forth in the Note (with
all references to the Note to include all amendments, extensions, renewals,
restatements, and replacements of the same).
NOW, THEREFORE, for valuable consideration (the receipt of which is hereby
acknowledged), to induce Mortgagee to enter into and perform its obligations
under the Note, and to secure payment and performance of all obligations
(collectively, the "Obligations") of Mortgagor arising out of or related to (i)
the Note, the Assignment of Leases and Guaranties dated as of even date
herewith, and all other Loan Documents; and (ii) all future obligations and
future advances made by Mortgagee, related to subsection (i), Mortgagor hereby
bargains, grants, sells, and conveys to Mortgagee and the heirs, successors and
assigns of Mortgagee, the following described property (the Land [defined below]
and all other property described in paragraphs (a)-(e) below are collectively
referred to as the "Premises"):
All that certain parcel or tract of land (the "Land") more fully described
in Exhibit A attached hereto and incorporated herein located in Charleston
County, State of South Carolina.
Together with:
(a) all singular rights, members, hereditaments, and appurtenances
belonging or in any way incident or appertaining thereto;
(b) all buildings and improvements of every kind and description now or
hereafter erected or placed on the Land (the "Improvements") and all materials
intended for construction, reconstruction, alteration, and repair of the
Improvements now or hereafter erected thereon, all of which materials shall be
deemed to be included within the Premises immediately upon the delivery thereof
to the Land, and all fixtures and articles of personal property now or hereafter
owned by Mortgagor and attached to or contained in and used in connection with
the Land and Improvements or any part thereof or derived from or acquired by any
proceeds of the Land or Improvements or any part thereof, including all goods,
furniture, appliances, furnishings, apparatus, machinery, equipment, motors,
elevators, fittings, radiators, ranges, refrigerators, awnings, shades, screens,
blinds, carpeting, office equipment and other furnishings, and all plumbing,
heating, lighting, cooking, laundry, ventilating, refrigerating, incinerating,
air conditioning, and sprinkler equipment, telephone systems, televisions and
television systems, computer systems and fixtures and appurtenances thereto, and
all renewals or replacements thereof or articles in substitution thereof,
whether or not the same are or shall be attached to the Land and Improvements in
any manner (the "Tangible Property");
(c) all easements, rights of way, gores of land, streets, ways, alleys,
passages, sewer rights, waters, water courses, water rights and powers, and all
estates, rights, titles, interests, privileges, liberties, and tenements,
hereditaments and appurtenances whatsoever, in any way belonging, relating, or
appertaining to any of the Premises, or which hereafter shall in any way belong,
relate, or be appurtenant thereto, whether now owned or hereafter acquired by
Mortgagor, and the reversion and reversions, remainder and remainders, rents,
issues, and profits thereof, and all the estate, right, title, interest,
property, possession, claim, and demand whatsoever, at law as well as in equity,
of Mortgagor of, in, and to the same, including all judgments, awards of
damages, and settlements hereafter made resulting from condemnation proceedings
or the taking of any of the Premises or any part thereof under the power of
eminent domain, or for any damage (whether caused by such taking or otherwise)
to the Premises or any part thereof, or to any rights appurtenant thereto
(together, the "Easements and Other Interests");
(d) all proceeds of any sales or other dispositions of any of the Premises
or any part thereof, including cash proceeds, non-cash proceeds, insurance
proceeds, products, replacements, additions, substitutions, renewals, and
accessions of any of the foregoing (the "Proceeds"); and
(e) as additional collateral and further security for the Obligations,
Mortgagor hereby conditionally assigns to Mortgagee all the leases, security
deposits, rents, issues, profits, revenues, accounts, accounts receivable,
contract rights, rights to payments for goods sold or leased or services
rendered, checks, notes, drafts, acceptances, instruments, deposit accounts,
chattel paper, documents, securities, rentals receivables, installment payment
obligations, book debts, actions, choses in action, judgments, awards, money,
general intangibles, other forms of obligations and receivables, all monies due
or to become due, and all returned or repossessed goods now or hereafter
pertaining to or resulting from the Premises or any part thereof (the
"Intangible Property") or constituting or derived from or acquired by any
proceeds of the Premises or any part thereof (the "Rents and Profits") reserving
only the right to Mortgagor to collect the same as long as there shall exist no
Event of Default (hereafter defined), together with all proceeds, including cash
proceeds, non-cash proceeds, insurance proceeds, products, replacements,
additions, substitutions, renewals, and accessions of the Rents and Profits or
any part thereof, and all replacements, modifications, renewals, and
substitutions thereof or therefore.
All Tangible Property which comprises a part of the Premises shall, to the
extent permitted by law, be deemed to be affixed to the Land. As to the balance
of the Tangible Property and Intangible Property, this Mortgage shall constitute
a security agreement and Mortgagor grants to Mortgagee a security interest in
the Tangible Property, the Intangible Property and the Rents and Profits,
together with all of the rights and remedies of a secured party under the Loan
Documents and applicable law, including the South Carolina Uniform Commercial
Code.
To Have and To Hold all and singular the Premises unto Mortgagee and the
heirs, successors, and assigns of Mortgagee forever.
Mortgagor covenants that Mortgagor is lawfully seized of the Premises in
fee simple absolute, that Mortgagor has good right and is lawfully authorized to
sell, convey, or encumber the same, and that the Premises are free and clear of
all encumbrances except as expressly provided herein. Mortgagor further
covenants to warrant and forever defend all and singular the Premises unto
Mortgagee and the heirs, successors, or assigns of Mortgagee from and against
Mortgagor and 'all persons whomsoever lawfully claiming the Premises or any part
of the Premises.
Provided Always, nevertheless, and it is the true intent and meaning of
Mortgagor and Mortgagee, that if Mortgagor pays or causes to be paid to
Mortgagee the Obligations, the estate hereby granted shall cease, determine, and
be utterly null and void; otherwise, said estate shall remain in full force and
effect.
It Is Agreed that Mortgagor shall be entitled to hold and enjoy the
Premises until an Event of Default has occurred.
Mortgagor further warrants, covenants and agrees with Mortgagee as follows:
1. Future Advances. This Mortgage is given wholly or partly to secure all
present and future advance and re-advances, if any, made or to be made to
Mortgagor by Mortgagee related to the Loan Documents or the Note. The maximum
principal amount, including resent and future advances and other Obligations,
which may be secured by this Mortgage at any one time shall not exceed twice the
face amount of the Note as stated above. Future obligations may be incurred and
future advances may be made at any time within fifteen (15) years of the date of
this Mortgage. If Mortgagee reserves the right to make future advances in excess
of the face amount of the Note, it is not an indication that Mortgagee intends
to make such future advances.
2. Maintenance. Mortgagor will maintain the Premises in good condition and
repair and will neither permit nor allow waste of any portion of the Premises.
Mortgagor will promptly repair or restore any portion of the Premises which is
damaged or destroyed by any cause whatsoever and will promptly pay when due all
costs and expenses of such repair or restoration. Mortgagor will not remove or
demolish any improvement or fixture which is now or hereafter part of the
Premises and will cut no timber on the Premises without the express written
consent of Mortgagee. Mortgagee shall be entitled to specific performance of the
provisions of this paragraph.
3. Insurance. Mortgagor will keep all Tangible Property insured by such
company or companies as Mortgagee may reasonably approve for the full insurable
value thereof against all risks including, if coverage is available, flood and
earthquake. Such insurance will be payable to Mortgagee as the interest of
Mortgagee may appear pursuant to the New York standard form of mortgagee clause
or such other form of mortgagee clause as may be required by Mortgagee and will
not be cancelable by either the insurer or the insured without at least thirty
(30) days prior written notice to Mortgagee. Mortgagor hereby assigns to
Mortgagee the right to collect and receive any indemnity payment otherwise owed
to Mortgagor upon any policy of insurance insuring any portion of the Premises,
regardless of whether Mortgagee is named in such policy as a person entitled to
collect upon the same. Any indemnity payment received by Mortgagee from any such
policy of insurance may, at the option of Mortgagee, (i) be applied by Mortgagee
to payment of any Obligations in such order as Mortgagee may determine, (ii) be
applied in a manner determined by Mortgagee to the replacement, repair, or
restoration of the portion of the Premises damaged or destroyed, (iii) be
released to Mortgagor upon such conditions as Mortgagee may determine, or (iv)
be used for any combination of the foregoing purposes. No portion of any
indemnity payment which is applied to replacement, repair, or restoration of any
portion of the Premises which is released to Mortgagor shall be deemed a payment
against any Obligations. Mortgagor will keep the Premises continuously insured
as herein required and will deliver to Mortgagee the original of each policy of
insurance required hereby. Mortgagor will pay each premium coming due on any
such policy of insurance and will deliver to Mortgagee proof of such payment at
least ten (10) days prior to the date such premium would become overdue or
delinquent. Upon the expiration or termination of any such policy of insurance,
Mortgagor will furnish to Mortgagee at lease ten (10) days prior to such
expiration or termination the original of a renewal or replacement policy of
insurance meeting the requirements of this Mortgage. Upon foreclosure of this
Mortgage, all right, title, and interest of Mortgagor in and to any policy of
insurance 'upon the Premises which is in the custody of Mortgagee, including the
right to unearned premiums, shall vest in the purchaser of the Premises at
foreclosure, and Mortgagor hereby appoints Mortgagee as the attorney in fact of
Mortgagor to assign all right, title, and interest of Mortgagor in and to any
such policy of insurance to such purchaser. This appointment is coupled with an
interest and shall be irrevocable.
4. Taxes and Assessments. Mortgagor will pay all taxes, assessments, and
other charges which constitute or are secured by a lien upon the Premises and
will deliver to Mortgagee proof of payment of the same not less than ten (10)
days prior to the date the same becomes delinquent; provided that
Mortgagor shall be entitled by appropriate proceedings to contest the
amount or validity of such tax, assessment, or charge so long as the collection
of the same is stayed during the pendency of such proceedings and Mortgagor
deposit with the authority to which such tax, assessment, or charge is payable
or with Mortgagee appropriate security for payment of the same, together with
any applicable interest and penalties, should the same be determined due and
owing.
5. Environmental Site Assessment. Mortgagor shall pay when due the cost of
providing to Mortgagee, at Mortgagee's request from time to time, a then-current
environmental site assessment, audit, or survey ("Assessment") of the Premises,
which Assessment shall be prepared by an environmental auditor acceptable to
Mortgagee, in Mortgagee's sole discretion; provided that Mortgagee shall make
such request no more frequently than once every second year unless the Note is
being renewed, extended, modified, or accelerated or Mortgagee is otherwise
required by any law, regulation, order, or other directive from any regulatory
agency having jurisdiction over Mortgagee to obtain any such Assessment.
6. Appraisal. Mortgagor shall pay when due the cost of providing to
Mortgagee, at Mortgagee's request from time to time, a then-current appraisal of
the market value of the Premises prepared by an appraiser acceptable to
Mortgagee in its discretion; provided that Mortgagee shall make such request no
more frequently than once every third year unless the Note is being renewed,
extended, modified, or accelerated or Mortgagee is otherwise required by any
law, regulation, order, or other directive from any regulatory agency having
jurisdiction over Mortgagee to obtain any such appraisal.
7. Expenditures by Mortgagee. If Mortgagor fails to make payment for
restoration or repair of the Premises, for insurance premiums, for taxes,
assessments, or other charges as required in this Mortgage, or for performance
of any other covenant or condition hereof, Mortgagee may, but shall not be
obligated to, pay for the same, and any such payment by Mortgagee will be
secured by this Mortgage and have the same rank and priority as the principal
Obligation secured by this Mortgage and bear interest from the date of payment
at the rate payable from time to time on outstanding principal under the Note
after the occurrence of an Event of Default. Payments made for taxes by
Mortgagee shall be a first lien on the Premises to the extent of the taxes so
paid with interest from the date of payment, regardless of the rank and priority
of this Mortgage.
8. After Acquired Premises. The lien of this Mortgage will automatically
attach, without further act, to all fixtures now or hereafter located in or on,
or attached to, or used or intended to be used in connection with or with the
operation of, the Premises or any part of the Premises.
9. Environmental Indemnification's. Mortgagor shall indemnify, defend, and
hold Mortgagee and its employees, agents, officers, attorneys, and successors
and assigns harmless from and against any and all claims, demands, suits,
losses, damages, assessments, fines, penalties, costs, or other expenses
(including reasonable attorneys' fees and litigation expenses) arising out of or
related directly or indirectly to the Loan Documents or any transaction
described therein, including any violation of any law related to hazardous
materials and any and all matters arising out of any act, omission, event, or
circumstance (including without limitation the presence on, generation at,
disposal of at, or release from the Premises of any hazardous substance or
waste), regardless of whether the act, omission, event, or circumstance
constituted a violation of any law related to hazardous materials at the time '
of its existence or occurrence, including hazardous materials located on or
about any real property owned by any Mortgagor or for which any Mortgagor may
otherwise be responsible. Mortgagor's Obligations under this Section shall
survive the repayment of the Loan and satisfaction of all Loan Documents.
10. Condemnation. Mortgagee shall be entitled to be made a party to, be
notified by Mortgagor of, and to participate in any proceeding, whether formal
or informal, for condemnation or acquisition pursuant to power of eminent domain
of any portion of the Premises. Mortgagor assigns to Mortgagee the right to
collect and receive any payment or award to which Mortgagor would otherwise be
entitled by reason of condemnation or acquisition pursuant to power of eminent
domain of any portion of the Premises. Any such payment or award received by
Mortgagee may, at the option of Mortgagee, (i) be applied by Mortgagee to
payment of any Obligations in such order as Mortgagee may determine, (ii) be
applied in a manner determined by Mortgagee to the replacement of the portion of
the Premises taken and to the repair or restoration of the remaining portion of
the Premises, (iii) be released to Mortgagor upon such conditions as Mortgagee
may determine, or (iv) be used for any combination of the foregoing purposes. No
portion of an indemnity payment which is applied to replacement, repair, or
restoration of any portion of the Premises or which is released to Mortgagor
shall be deemed a payment against any Obligations.
11. Transfer. At the option of Mortgagee, the Obligations shall become due
and payable if, without the prior written consent of Mortgagee, Mortgagor shall
convey away the Premises or any interest therein, further encumber the Premises,
or suffer the placement of any mechanics' lien on the Premises which is not
removed within 30 days after filing; or if the legal or beneficial ownership
shall become vested in any other person in any manner whatsoever.
1 2. Event of Default. An "Event of Default" shall be the occurrence or
existence of the occurrence of any of the following shall constitute an event of
default ("Event of Default"):
(a) Payment. Any payment of principal, interest, or other sum owed to
Mortgagee under the Loan Documents or otherwise due from Mortgagor to Mortgagee
is not made when due.
(b) Additional Defaults. Any provision or covenant of the Loan Documents is
breached, or any warranty, representation, or statement made or furnished to
Mortgagee by Mortgagor in connection with the Loan and the Loan Documents
(including any warranty, representation, or statement in Mortgagor's financial
statements) or to induce Mortgagee to make the Loan, is untrue or misleading in
any material respect.
(c) Insecurity. Mortgagee reasonably deems itself, any collateral, or any
lien or security interest, insecure or unsafe; or Mortgagee, in good faith,
believes that its prospects for payment of the Loan have been impaired.
1 3. Mortgagee's Remedies and Grace Period.
(a) Acceleration/Grace Period. Upon the occurrence of an Event of Default
which continues beyond the applicable Grace Period, Mortgagee shall have the
option to declare the entire unpaid principal amount of the Loan, accrued
interest, and all other Obligations immediately due and payable, without
presentment, demand, or notice of any kind. Prior to exercising any right to
accelerate, Mortgagee will provide written notice to Mortgagor of the Event of
Default and Mortgagor will have five (5) days to cure in the case of a monetary
default and fifteen (15) days to cure in the case of a non-monetary default (the
"Grace Period(s)"), such Grace Periods to commence an the date that notice is
sent to Mortgagor by Mortgagee.
(b) Remedies. Upon the occurrence of an Event of Default which continues
beyond the applicable Grace Period, Mortgagee shall be entitled to pursue all
Rights (hereafter defined) available under each of the Loan Documents, as well
as all Rights and remedies available at law or in equity. Without in any way
limiting the generality of the foregoing, Mortgagee, shall also have the
following non-exclusive Rights:
A. Immediate Possession of Collateral. To take immediate possession of all
collateral, whether now owned or hereafter acquired, without notice, demand,
presentment, or resort to legal process, and, for those purposes, to enter any
premises where any of the collateral is located and remove the collateral
therefrom or render it unusable;
B. Assembly of Collateral. To require Mortgagor to assemble and make the
collateral available to Mortgagee at a place to be designated by Mortgagee which
is also reasonably convenient to Mortgagor.
C. Sale of Personal Property. To retain all non-real estate collateral in
satisfaction of any unpaid Obligations as provided in the Uniform Commercial
Code or sell the collateral at public or private sale after giving at least ten
(1 0) days' notice of the time and place of the sale, with or without having the
collateral physically present at the place of the sale (such notice constituting
reasonable notice under the Uniform Commercial Code).
D. Repair of Collateral. To make any repairs to the collateral which
Mortgagee deems necessary or desirable for the purposes of sale.
E. Set-off. To exercise any and all Rights of set-off which Mortgagee may
have against any account, fund, or property of any kind, tangible or intangible,
belonging to Mortgagor which shall be in Mortgagee's possession or under its
control.
F. Cure. To cure any Event of Default in such manner as deemed appropriate
by Mortgagee.
G. Foreclosure. If the Loan is secured by a lien on any real property, to
foreclose on such real property pursuant to the terms of this Mortgage or other
Loan Documents, or at law or in equity. Mortgagee shall be entitled to xxx and
recover judgment, as set forth above, either before, after, or during the
pendency of any proceedings for the enforcement of this Mortgage, and the right
of Mortgagee to recover such judgment shall not be affected by any taking,
possession, or foreclosure sale under this Mortgage, or by the exercise of any
other right, power, or remedy for the enforcement of the terms of this Mortgage,
or the foreclosure of the lien of this Mortgage. At the foreclosure Mortgagee
shall be entitled to bid and to purchase the Premises and shall be entitled to
apply the Obligations, or any portion thereof, in payment for the Premises. The
proceeds of the sale shall be applied to the cost of sale, the amount due to
Mortgagee, and as otherwise required by then existing laws related to
foreclosure or as deemed necessary by Mortgagee. In case of a foreclosure sale
of all or any part of the Premises and of the application of the proceeds of
sale to the payment of the Obligations, Mortgagee shall be entitled to enforce
payment of and to receive all amounts then remaining due and unpaid and to
recover judgment for any portion thereof remaining unpaid, with interest. The
remedies provided to Mortgagee in this paragraph shall be in addition to and not
in lieu of any other rights and remedies provided in this Mortgage or any other
Loan Document, by law or in equity, all of which rights and remedies may be
exercised by Mortgagee independently, simultaneously, or consecutively in any
order without being deemed to have waived any right or remedy previously or not
yet exercised.
Without in any way limiting the generality of the foregoing, Mortgagee
shall also have the following specific rights and remedies:
(c) To make any repairs to the Premises which Mortgagee deems necessary or
desirable for the purposes of sale.
(d) To exercise any and all rights of set-off which Mortgagee may have
against any account, fund, or property of any kind, tangible or intangible,
belonging to Mortgagor which shall be in Mortgagee's possession or under its
control.
(e) To cure such Event of Default, with the result that all costs and
expenses incurred or paid by Mortgagee in effecting such cure shall be
additional charges on the Loan which bear interest at the interest rate set
forth in the Note and are payable upon demand.
(f) To foreclose on the Premises and to pursue any and all remedies
available to Mortgagee at law or in equity, and in any order Mortgagee may
desire, in Mortgagee's sole discretion.
14. Appointment of Receiver. Upon the occurrence of an Event of Default,
Mortgagee shall be entitled to the appointment of a receiver to enter upon and
take and maintain full control of the Premises in order to perform all acts
necessary and appropriate for the operation and maintenance of the Premises
including the execution, cancellation, or modification of leases, the making of
repairs to the Premises, and the execution or termination of contracts providing
for the construction, management, or maintenance of the Premises, all on such
terms as are deemed best to protect the security of this Mortgage. The receiver
shall be entitled to receive a reasonable fee for so managing the Premises. All
rents collected pursuant to this paragraph shall be applied first to the costs
of taking control of and managing the Premises and collecting the rents,
including attorneys' fees, receiver's fees, premiums on receiver's bonds, costs
of repairs to the Premises, premiums on insurance policies, taxes, assessments
and other charges on the Premises, and the costs of discharging any obligation
or liability of Mortgagor as lessor or landlord of the Premises and then to the
Obligations. Mortgagee or the receiver shall have access to the books and
records used in the operation and maintenance of the Premises and shall be
liable to account only for those rents actually received. Mortgagee shall not be
liable to Mortgagor or anyone claiming under or through Mortgagor, or anyone
having an interest in the Premises by reason of anything done or left undone by
Mortgagor under this Section. If the rents of the Premises are not sufficient to
meet the costs of taking control of and managing the Premises and collecting the
rents, Mortgagee, at its sole option, may advance funds to meet the costs. Any
funds expended by Mortgagee for such purposes shall become Obligations of
Mortgagor to Mortgagee. Unless Mortgagee and Mortgagor agree in writing to other
terms of payment, such amounts shall be payable upon notice from Mortgagee to
Mortgagor requesting payment thereof and shall bear interest from the date of
disbursement at the rate stated 'in the Note after the occurrence of an Event of
Default. The entering upon and taking and maintaining of control of the Premises
by Mortgagee or the receiver and the application of rents as provided in this
Mortgage shall not cure or waive any vent of Default or invalidate any other
right or remedy of Mortgagee under this Mortgage. Notwithstanding the
appointment of any receiver or other custodian, Mortgagee shall be entitled as
secured party hereunder to the possession and control of any cash deposits or
instrument at the time held by, or payable or deliverable under the terms of
this Mortgage to, Mortgagee.
15. Waiver by Mortgagor. Mortgagor understands that upon default under this
Mortgage, among other remedies set out in this Mortgage, the Note, and the Loan
Documents, Mortgagee may foreclose upon the Premises or any portion thereof in
the sole discretion of Mortgagee and ask for a deficiency judgment. Mortgagor,
to the extent permitted by law, hereby expressly waives and relinquishes any
rights of redemption, valuation, appraisement, marshalling of assets, and sale
in inverse order of alienation and homestead, which Mortgagor may have under any
statute or governing law and understands and agrees that a deficiency judgment,
if pursued by Mortgagee, shall be determined by the highest price bid at the
foreclosure sale of the property.
1 6. Notices. Any notice given to Mortgagor or Mortgagee by one of these
parties shall be in writing and shall be signed by the party giving notice. Any
notice or other document to be delivered to Mortgagor or Mortgagee by one of
these parties shall be deemed delivered if (i) mailed postage prepaid, or (ii)
sent via nationally recognized overnight courier, to the party to whom directed
at the address of such party described above. This paragraph shall not be deemed
to-prohibit any other manner of delivering a notice or other document.
1 7. Additional Documents. The Mortgagor agrees to execute and deliver to
the Mortgagee, upon the request of the Mortgagee from time to time hereafter,
all financing statements and other documents reasonably required to perfect and
maintain the lien and security interest created by the Mortgage.
1 8. Partial Foreclosure. In the event the Property is comprised of more
than one parcel of real property, Mortgagor hereby waives any right to require
Mortgagee to foreclose or exercise any of its other remedies against all of the
Property as a whole or to require Mortgagee to foreclose or exercise such
remedies against one portion of the Property prior to the foreclosure or
exercise of said remedies against other portions of the Property.
1 9. Greater Estate. In the event that Mortgagor is the owner of a
leasehold estate with respect to any portion of the Premises and, prior to the
satisfaction of the Obligations and the cancellation of this Mortgage of record,
Mortgagor obtains a fee estate in such portion of the Premises, then, such fee
estate shall automatically, and without further action of any kind on the part
of Mortgagor, be and become subject to the security lien of this Mortgage.
20. Imposition of Tax. In the event of the passage of any state, federal,
municipal, or other governmental law, order, rule, or regulation in any manner
changing or modifying the laws now in force governing the taxation of debts
secured by deeds of trust or the manner of collecting taxes so as to affect
adversely Mortgagee, Mortgagor will promptly pay any such tax on or before the
due date; and if Mortgagor fails to make such prompt payment or if any such
state, federal, municipal, or other governmental law, order, rule, or regulation
prohibits Mortgagor from making such payment or would penalize Mortgagee if
Mortgagor makes such payment, then the entire balance of the Obligations
evidenced by the Note shall become due and payable upon demand at the option of
Mortgagee.
21. Amendments. Neither this Mortgage nor any term hereof may be changed,
waived, discharged, or terminated orally, or by any action or inaction, but only
by an instrument in writing signed by the party against which enforcement of the
change, waiver, discharge, or termination is sought. Any agreement made after
the execution of this Mortgage by Mortgagor and Mortgagee relating to this
Mortgage shall be superior to the rights of the holder of any intervening lien
or encumbrance on the Premises.
22. Miscellaneous.
(a) The terms "Mortgagor" and "Mortgagee" shall refer to and include the
heirs, legal representatives, successors, and assigns of Mortgagor and Mortgagee
and all covenants and agreements contained in this Mortgage by or on behalf of
Mortgagor or Mortgagee shall bind and inure to the benefit of their
representatives, heirs, successors, and assigns, whether so expressed or not.
(b) This Mortgage shall be governed by, construed, and enforced in
accordance with the laws of South Carolina.
(c) Mortgagee may make or cause to be made reasonable entries onto the
Premises for inspections, appraisals, environmental tests, or assessments upon
the giving to Mortgagor of prior notice, and to this end, Mortgagor grants an
easement to Mortgagee over and onto the Premises for such purposes.
(d) If this is not a first mortgage, any prior mortgages and the maximum
amount thereof are shown below: Mortgage and Security Agreement provided by
Mortgagor in favor of Xxxxx Development Corporation in the principal amount of
$625,000.00 dated as of even date herewith and recorded immediately prior to the
recording of this Mortgage.
(e) Mortgagor represents to Mortgagee that such Mortgagor is benefited by
the Loan evidenced by the Note, whether or not Mortgagor is the maker thereof,
that Mortgagor's obligations under this Mortgage will not render Mortgagor
insolvent, and that adequate and sufficient consideration has been given to
Mortgagor for its execution and delivery of this Mortgage.
23. Leaseback Offset. The Mortgagor and Mortgagee acknowledge and agree
that, contemporaneously with the execution of this Mortgage, they have entered
into a leaseback lease agreement (the "Lease") for the lease of the Charleston
County Property by Mortgagor as landlord to Mortgagee as tenant. As a further
covenant and condition of this Mortgage, the parties hereby covenant and agree
during the term of the Lease, or any extension thereof, that in the event
Mortgagee breaches the Lease or is delinquent in the payment of rent or any
other charges due under the Lease for a period of ninety (90) days, then in that
event, Mortgagor shall be immediately entitled to an offset against payment due
under the Note and this Mortgage in an amount equal to any such unpaid rent or
charges due under the Lease, together with interest thereon in the amount of ten
percent (10%) from the date of default. The offset granted herein shall, at the
election of Mortgagor, be applied against the unpaid principal balance due on
the Note or may be applied as against current monthly payments due pursuant to
the Note and Mortgage.
24. Subordination. Mortgagee, for itself and its successors and assigns,
agrees and does hereby now and forever subordinate and postpone this Mortgage
lien in favor of the mortgage lien of Xxxxx Development Corporation ("BDC"), and
its successors and assigns, made pursuant to that certain mortgage and security
agreement ("BDC Mortgage") executed by Mortgagor in favor of BDC and recorded in
the RMC's office in the county in which the Land is situate immediately prior to
the recording of this Mortgage. The BDC Mortgage secures a loan in the
original principal amount of $625,000.00 dated as of even date herewith, and
Mortgagee consents and agrees that the BDC Mortgage shall have priority and
precedence over this Mortgage until the BDC Loan is satisfied in full.
[Signature Page Attached]
In Witness Whereof, Mortgagor has executed this Mortgage under seal as of
the day and year first above written.
MORTGAGOR:
Signed, sealed and delivered in (SEAL)
the presence of:
Xxxxx X. Xxxxxx
STATE OF VIRGINIA
PROBATE
COUNTY OF CHESTERFIELD
PERSONALLY appeared before me the undersigned witness who after first being
duly sworn, deposes and says that s/he saw the within-named Xxxxx X. Xxxxxx,
sign, seal and as his act and deed, deliver the within-written Mortgage and
Security Agreement for the uses and purposes therein mentioned, and that s/he
together with the other witness whose signature appears above, witnessed the
execution thereof.
WITNESS
SWORN TO BEFORE ME THIS
day of , 1996.
(L. S.)
My commission expires:
EXHIBIT A
LEGAL DESCRIPTION
All that certain unit, known as Xxxx X-0, situate, lying and being in
Trident Executive Village Horizontal property Regime as shown on the Declaration
(Master Deed), dated October 20, 1986, establishing the Trident Executive
Village Horizontal Property Regime, recorded in Deed Book R-158, at Page 497, in
the Office of the Register of Mesne Conveyances for Charleston County, South
Carolina; and Expansion Amendment recorded in Deed Book J-160, at Page 727; and
Expansion Amendment recorded in Book 0-166, at Page 159; and Subdivision
Amendment recorded in Book N-168, at Page 299; and Subdivision Amendment dated
October 12, 1987, and recorded in Book 0-169, at Page 586.
Being the same premises conveyed to the Mortgagor herein by deed of
Envirometrics, Inc., dated December 1996, and recorded simultaneously herewith.
TMS # 000-00-00-000
