[Alabama - Eufala]
THIS INSTRUMENT SECURES A MAXIMUM PRINCIPAL AMOUNT OF $6,500,000.00.
MORTGAGE
from
AMERICAN BUILDINGS COMPANY, Mortgagor
to
CANADIAN IMPERIAL BANK OF COMMERCE, Mortgagee
DATED AS OF DECEMBER 4, 1997
After recording, please return to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
a partnership which includes
professional corporations
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxxx X. Xxxx, Esq.
[Alabama - Eufala]
MORTGAGE
THIS MORTGAGE, dated as of December 4, 1997 is made by
AMERICAN BUILDINGS COMPANY, a Delaware corporation ("Mortgagor"), whose address
is 0000 Xxxxx Xxxxx Xxxx, Xxxxxx, Xxxxxxx 00000, to CANADIAN IMPERIAL BANK OF
COMMERCE, as administrative agent for the Lenders referred to below (in such
capacity, "Mortgagee"), whose address is 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000. References to this "Mortgage" shall mean this instrument and any and
all renewals, modifications, amendments, supplements, extensions,
consolidations, substitutions, spreaders and replacements of this instrument.
Background
X. Xxxxxxxxx has entered into the Credit Agreement dated as of
December 4, 1997 (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") with the several banks and
other financial institutions from time to time parties thereto (the "Lenders")
and Mortgagee.
Capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Credit Agreement. References in this Mortgage
to the "Default Rate" shall mean the interest rate provided for in Section
2.12(c) of the Credit Agreement for Base Rate Loans that are overdue.
X. Xxxxxxxxx is the owner of the parcel(s) of real property
described on Exhibit A attached (such real property, together with all of the
buildings, improvements, structures and fixtures now or subsequently located
thereon (the "Improvements"), being collectively referred to as the "Real
Estate"), which Real Estate secures a maximum principal indebtedness of
$6,500,000.00.
C. Pursuant to the terms and conditions of the Credit
Agreement, the Mortgagee and the Lenders are and will be making Loans to the
Mortgagor and providing Letters of Credit on behalf of the Mortgagor.
D. The obligations of the Lenders to make the Loans and to
issue Letters of Credit are conditioned upon, among other things, the execution
and delivery by Xxxxxxxxx of this Mortgage.
Granting Clauses
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Xxxxxxxxx agrees that to secure:
(a) payment of the Term Loans (the "Obligations"); and
(b) the performance and observance of each obligation,
term, covenant and condition to be performed or
observed by Xxxxxxxxx (the "Performance
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Obligations") under, in connection with or pursuant
to the provisions of the Credit Agreement, any Notes,
the Letters of Credit, the Guarantee and Collateral
Agreement, this Mortgage and any of the other
Security Documents or any of the other Loan
Documents;
XXXXXXXXX XXXXXX GRANTS TO MORTGAGEE A LIEN UPON AND A SECURITY INTEREST IN, AND
HEREBY MORTGAGES, GRANTS, ASSIGNS, TRANSFERS AND SETS OVER TO MORTGAGEE WITH
MORTGAGE COVENANTS:
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever
of Mortgagor, in possession or expectancy, in and to the Real Estate or
any part thereof;
(C) all right, title and interest of Mortgagor in, to and
under all easements, rights of way, gores of land, streets, ways,
alleys, passages, sewer rights, waters, water courses, water and
riparian rights, development rights, air rights, mineral rights and all
estates, rights, titles, interests, privileges, licenses, tenements,
hereditaments and appurtenances belonging, relating or appertaining to
the Real Estate, and any reversions, remainders, rents, issues, profits
and revenue thereof and all land lying in the bed of any street, road
or avenue, in front of or adjoining the Real Estate to the center line
thereof;
(D) all of the fixtures, chattels, business machines,
machinery, apparatus, equipment, furnishings, fittings and articles of
personal property of every kind and nature whatsoever, and all
appurtenances and additions thereto and substitutions or replacements
thereof (together with, in each case, attachments, components, parts
and accessories) currently owned or subsequently acquired by Mortgagor
and now or subsequently attached to, or contained in or used or usable
in any way in connection with any operation or letting of the Real
Estate, including but without limiting the generality of the foregoing,
all screens, awnings, shades, blinds, curtains, draperies, artwork,
carpets, rugs, storm doors and windows, furniture and furnishings,
heating, electrical, and mechanical equipment, lighting, switchboards,
plumbing, ventilating, air conditioning and air-cooling apparatus,
refrigerating, and incinerating equipment, escalators, elevators,
loading and unloading equipment and systems, stoves, ranges, laundry
equipment, cleaning systems (including window cleaning apparatus),
telephones, communication systems (including satellite dishes and
antennae), televisions, computers, sprinkler systems and other fire
prevention and extinguishing apparatus and materials, security systems,
motors, engines, machinery, pipes, pumps, tanks, conduits, appliances,
fittings and fixtures of every kind and description (all of the
foregoing in this paragraph (D) being referred to as the "Equipment");
(E) all right, title and interest of Xxxxxxxxx in and to all
substitutes and replacements of, and all additions and improvements to,
the Real Estate and the Equipment, subsequently acquired by or released
to Mortgagor or constructed, assembled or placed by Mortgagor on the
Real Estate, immediately upon such acquisition, release, construction,
assembling or placement, including, without limitation, any and all
building materials whether stored at the Real Estate or offsite, and,
in each such case, without any further mortgage, conveyance, assignment
or other act by Mortgagor;
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(F) all right, title and interest of Mortgagor in, to and
under all leases, subleases, underlettings, concession agreements,
management agreements, licenses and other agreements relating to the
use or occupancy of the Real Estate or the Equipment or any part
thereof, now existing or subsequently entered into by Mortgagor and
whether written or oral and all guarantees of any of the foregoing
(collectively, as any of the foregoing may be amended, restated,
extended, renewed or modified from time to time, the "Leases"), and all
rights of Mortgagor in respect of cash and securities deposited
thereunder and the right to receive and collect the revenues, income,
rents, issues and profits thereof, together with all other rents,
royalties, issues, profits, revenue, income and other benefits arising
from the use and enjoyment of the Mortgaged Property (as defined below)
(collectively, the "Rents");
(G) all unearned premiums under insurance policies now or
subsequently obtained by Mortgagor relating to the Real Estate or
Equipment and Mortgagor's interest in and to all proceeds of any such
insurance policies (including title insurance policies) including the
right to collect and receive such proceeds, subject to the provisions
relating to insurance generally set forth below; and all awards and
other compensation, including the interest payable thereon and the
right to collect and receive the same, made to the present or any
subsequent owner of the Real Estate or Equipment for the taking by
eminent domain, condemnation or otherwise, of all or any part of the
Real Estate or any easement or other right therein;
(H) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now
owned or held or subsequently acquired by Xxxxxxxxx and described in the
foregoing clauses (A) through (E) are collectively referred to as the
"Premises", and those described in the foregoing clauses (A) through (H) are
collectively referred to as the "Mortgaged Property").
TO HAVE AND TO HOLD the Mortgaged Property and the rights and
privileges hereby mortgaged unto Mortgagee, its successors and assigns for the
uses and purposes set forth, until the Obligations are fully paid and the
Performance Obligations fully performed.
Terms and Conditions
Xxxxxxxxx further represents, warrants, covenants and agrees
with Mortgagee as follows:
1. Warranty of Title. Mortgagor warrants that Mortgagor has
good title to the Real Estate in fee simple and good title to, or a valid
leasehold interest in, its other Mortgaged Property, subject only to the matters
that are set forth in Schedule B of the title insurance policy being issued to
Mortgagee to insure the lien of this Mortgage and Section 7.3 of the Credit
Agreement (the "Permitted Exceptions") and Grantor shall warrant, defend and
preserve such title and the lien of this Mortgage thereon against all claims of
all persons and entities. Subject only to the Permitted Exceptions, Mortgagor
further warrants that it has the right to encumber the Mortgaged Property under
this Mortgage.
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2. Payment of Indebtedness. Mortgagor shall pay the
Obligations at the times and places and in the manner specified in the Credit
Agreement and shall perform all the Performance Obligations.
3. Restrictions on Liens and Encumbrances. Except for the lien
of this Mortgage, and except as expressly permitted under the Credit Agreement,
Mortgagor shall not further mortgage, nor otherwise encumber the Mortgaged
Property nor create any lien, charge or encumbrance on the Mortgaged Property,
or any part thereof.
4. Due on Sale and Other Transfer Restrictions. Except as
expressly permitted under the Credit Agreement, Mortgagor shall not sell,
transfer, convey or assign all or any portion of, or any interest in, the
Mortgaged Property.
5. Insurance. (a) Mortgagor will maintain, with financially
sound and reputable companies, insurance policies (i) insuring the Inventory,
Equipment and Vehicles against loss by fire, explosion, theft and such other
casualties as may be reasonably satisfactory to Mortgagee and (ii) insuring
Mortgagor, Mortgagee and the Lenders against liability for personal injury and
property damage relating to such Inventory, Equipment and Vehicles, such
policies to be in such form and amounts and having such coverage as may be
reasonably satisfactory to Mortgagee and the Lenders.
(b) All such insurance shall (i) provide that no cancellation,
material reduction in amount or material reduction in coverage thereof shall be
effective until at least 30 days after receipt by Mortgagee of written notice
thereof, (ii) name Mortgagee as insured party or loss payee, (iii) if reasonably
requested by Mortgagee, include a breach of warranty clause and (iv) be
reasonably satisfactory in all other respects to Mortgagee.
(c) Mortgagor shall deliver to Mortgagee and the Lenders a
report of a reputable insurance broker with respect to such insurance during the
month of November in each calendar year and such supplemental reports with
respect thereto as Mortgagee may from time to time reasonably request.
6. Hazardous Material. Section 4.17 of the Credit Agreement is
incorporated herein by reference; provided, however, that all references to
"Properties" shall only mean the "Premises", and all references to "Borrower or
any of its Subsidiaries" shall only mean "Mortgagee."
7. Events of Default. The occurrence of an Event of Default
under the Credit Agreement shall constitute an Event of Default hereunder.
8. Remedies. (a) Upon the occurrence of any Event of Default,
Mortgagee may immediately take such action, without notice or demand, as it
deems advisable to protect and enforce its rights against Mortgagor and in and
to the Mortgaged Property, including, but not limited to, the following actions,
each of which may be pursued concurrently or otherwise, at such time and in such
manner as Mortgagee may determine, in its sole discretion, without impairing or
otherwise affecting the other rights and remedies of Mortgagee:
(i) Mortgagee may, to the extent permitted by applicable law,
(A) institute and
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maintain an action of mortgage foreclosure against all or any part of
the Mortgaged Property, (B) institute and maintain an action on the
Obligations, (C) sell all or part of the Mortgaged Property at one or
more public or private sales and at such times and places upon such
terms as Mortgagee may specify in the notice of sale to be given to
Mortgagor or as may be required by law (Mortgagor expressly granting to
Mortgagee the power of sale, which power of sale shall not be exhausted
by one or more such sales, but shall continue unimpaired until all of
the Mortgaged Property shall have been sold or the Obligations and the
Performance Obligations shall have been fully paid and performed), or
(D) take such other action at law or in equity for the enforcement of
this Mortgage or any of the Loan Documents as the law may allow.
Mortgagee may proceed in any such action to final judgment and
execution thereon for all sums due hereunder, together with interest
thereon at the Default Rate and all costs of suit, including, without
limitation, attorneys' fees and disbursements. Interest at the Default
Rate shall be due on any judgment obtained by Mortgagee from the date
of judgment until actual payment is made of the full amount of the
judgment.
(ii) Mortgagee may personally, or by its agents, attorneys and
employees and without regard to the adequacy or inadequacy of the
Mortgaged Property or any other collateral as security for the
Obligations and Performance Obligations enter into and upon the
Mortgaged Property and each and every part thereof and exclude
Mortgagor and its agents and employees therefrom without liability for
trespass, damage or otherwise (Mortgagor hereby agreeing to surrender
possession of the Mortgaged Property to Mortgagee upon demand at any
such time) and use, operate, manage, maintain and control the Mortgaged
Property and every part thereof. Following such entry and taking of
possession, Mortgagee shall be entitled, without limitation, (x) to
lease all or any part or parts of the Mortgaged Property for such
periods of time and upon such conditions as Mortgagee may, in its
discretion, deem proper, (y) to enforce, cancel or modify any Lease and
(z) generally to execute, do and perform any other act, deed, matter or
thing concerning the Mortgaged Property as Mortgagee shall deem
appropriate as fully as Mortgagor might do.
(b) The holder of this Mortgage, in any action to foreclose
it, shall be entitled to the appointment of a receiver. In case of a
foreclosure sale, the Real Estate may be sold, at Mortgagee's election, in one
parcel or in more than one parcel and Mortgagee is specifically empowered,
(without being required to do so, and in its sole and absolute discretion) to
cause successive sales of portions of the Mortgaged Property to be held.
(c) In the event of any breach of any of the covenants,
agreements, terms or conditions contained in this Mortgage, any breach of the
statutory condition upon which this Mortgage is made, Mortgagee shall be
entitled to enjoin such breach and obtain specific performance of any covenant,
agreement, term or condition and Mortgagee shall have the right to invoke any
equitable right or remedy as though other remedies were not provided for in this
Mortgage.
9. Right of Mortgagee to Credit Sale. Upon the occurrence of
any sale made under this Mortgage, whether made under the power of sale or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale, Mortgagee may bid for and acquire the Mortgaged Property or any part
thereof. In lieu of paying cash therefor, Mortgagee may make settlement for the
purchase price by crediting upon the Obligations or other sums secured by this
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Mortgage the net sales price after deducting therefrom the expenses of sale and
the cost of the action and any other sums which Mortgagee is authorized to
deduct under this Mortgage.
10. Appointment of Receiver. If an Event of Default shall have
occurred and be continuing or upon any breach of the statutory condition upon
which this Mortgage is made, Mortgagee as a matter of right and without notice
to Mortgagor, unless otherwise required by applicable law, and without regard to
the adequacy or inadequacy of the Mortgaged Property or any other collateral as
security for the Obligations and Performance Obligations or the interest of
Mortgagor therein, shall have the right to apply to any court having
jurisdiction to appoint a receiver or receivers or other manager of the
Mortgaged Property, and Xxxxxxxxx hereby irrevocably consents to such
appointment and waives notice of any application therefor (except as may be
required by law). Any such receiver or receivers shall have all the usual powers
and duties of receivers in like or similar cases and all the powers and duties
of Mortgagee in case of entry as provided in this Mortgage, including, without
limitation and to the extent permitted by law, the right to enter into leases of
all or any part of the Mortgaged Property, and shall continue as such and
exercise all such powers until the date of confirmation of sale of the Mortgaged
Property unless such receivership is sooner terminated.
11. Extension, Release, etc. (a) Without affecting the lien or
charge of this Mortgage upon any portion of the Mortgaged Property not then or
theretofore released as security for the full amount of the Obligations,
Mortgagee may, from time to time and without notice, agree to (i) release any
person liable for the Obligations, (ii) extend the maturity or alter any of the
terms of the Obligations or any guaranty thereof, (iii) grant other indulgences,
(iv) release or reconvey, or cause to be released or reconveyed at any time at
Mortgagee's option any parcel, portion or all of the Mortgaged Property, (v)
take or release any other or additional security for any obligation herein
mentioned, or (vi) make compositions or other arrangements with debtors in
relation thereto. If at any time this Mortgage shall secure less than all of the
principal amount of the Obligations, it is expressly agreed that any repayments
of the principal amount of the Obligations shall not reduce the amount of the
lien of this Mortgage until the lien amount shall equal the principal amount of
the Obligations outstanding.
(b) No recovery of any judgment by Xxxxxxxxx and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect the lien of this Mortgage or any liens,
rights, powers or remedies of Mortgagee hereunder, and such liens, rights,
powers and remedies shall continue unimpaired.
(c) If Mortgagee shall have the right to foreclose this
Mortgage, Mortgagor authorizes Mortgagee at its option to foreclose the lien of
this Mortgage subject to the rights of any tenants of the Mortgaged Property.
The failure to make any such tenants parties defendant to any such foreclosure
proceeding and to foreclose their rights will not be asserted by Mortgagor as a
defense to any proceeding instituted by Mortgagee to collect the Obligations or
to foreclose the lien of this Mortgage.
(d) Unless expressly provided otherwise, in the event that
ownership of this Mortgage and title to the Mortgaged Property or any estate
therein shall become vested in the same person or entity, this Mortgage shall
not merge in such title but shall continue as a valid lien on the Mortgaged
Property for the amount secured hereby.
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12. Security Agreement Under Uniform Commercial Code. (a) It
is the intention of the parties hereto that this Mortgage shall constitute a
Security Agreement within the meaning of the Uniform Commercial Code (the
"Code") of the State in which the Premises are located. If an Event of Default
shall occur under this Mortgage, then in addition to having any other right or
remedy available at law or in equity, Mortgagee shall have the option of either
(i) proceeding under the Code and exercising such rights and remedies as may be
provided to a secured party by the Code with respect to all or any portion of
the Mortgaged Property which is personal property (including, without
limitation, taking possession of and selling such property) or (ii) treating
such property as real property and proceeding with respect to both the real and
personal property constituting the Mortgaged Property in accordance with
Mortgagee's rights, powers and remedies with respect to the real property (in
which event the default provisions of the Code shall not apply). If Mortgagee
shall elect to proceed under the Code, then ten days' notice of sale of the
personal property shall be deemed reasonable notice and the reasonable expenses
of retaking, holding, preparing for sale, selling and the like incurred by
Mortgagee shall include, but not be limited to, attorneys' fees and legal
expenses. At Mortgagee's request, Xxxxxxxxx shall assemble the personal property
and make it available to Mortgagee at a place designated by Mortgagee which is
reasonably convenient to both parties.
(b) Xxxxxxxxx and Mortgagee agree, to the extent permitted by
law, that: (i) all of the goods described within the definition of the word
"Equipment" are or are to become fixtures on the Real Estate; (ii) this Mortgage
upon recording or registration in the real estate records of the proper office
shall constitute a financing statement filed as a "fixture filing" within the
meaning of Sections 9-313 and 9-402 of the Code; (iii) Mortgagor is the record
owner of the Real Estate; and (iv) the addresses of Mortgagor and Mortgagee are
as set forth on the first page of this Mortgage.
(c) Mortgagor, upon request by Mortgagee from time to time,
shall execute, acknowledge and deliver to Mortgagee one or more separate
security agreements, in form satisfactory to Mortgagee, covering all or any part
of the Mortgaged Property and will further execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, any financing statement,
affidavit, continuation statement or certificate or other document as Mortgagee
may request in order to perfect, preserve, maintain, continue or extend the
security interest under and the priority of this Mortgage and such security
instrument. Xxxxxxxxx further agrees to pay to Mortgagee on demand all costs and
expenses incurred by Mortgagee in connection with the preparation, execution,
recording, filing and re-filing of any such document and all costs and expenses
of any record searches for financing statements Mortgagee shall require. If
Mortgagor shall fail to furnish any financing or continuation statement within
10 days after request by Mortgagee, then pursuant to the provisions of the Code,
Mortgagor hereby authorizes Mortgagee, without the signature of Xxxxxxxxx, to
execute and file any such financing and continuation statements. The filing of
any financing or continuation statements in the records relating to personal
property or chattels shall not be construed as in any way impairing the right of
Mortgagee to proceed against any personal property encumbered by this Mortgage
as real property, as set forth above.
13. Assignment of Rents. Mortgagor hereby assigns to Mortgagee
the Rents as further security for the payment of the Obligations and performance
of the Performance Obligations, and Mortgagor grants to Mortgagee the right to
enter the Mortgaged Property for the purpose of collecting the same and to let
the Mortgaged Property or any part thereof, and to apply
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the Rents on account of the Obligations. The foregoing assignment and grant is
present and absolute and shall continue in effect until the Obligations are paid
in full, but Mortgagee hereby waives the right to enter the Mortgaged Property
for the purpose of collecting the Rents and Mortgagor shall be entitled to
collect, receive, use and retain the Rents until the occurrence of an Event of
Default under this Mortgage; such right of Mortgagor to collect, receive, use
and retain the Rents may be revoked by Mortgagee upon the occurrence of any
Event of Default under this Mortgage by giving not less than five days' written
notice of such revocation to Mortgagor; in the event such notice is given,
Mortgagor shall pay over to Mortgagee, or to any receiver appointed to collect
the Rents, any lease security deposits, and shall pay monthly in advance to
Mortgagee, or to any such receiver, the fair and reasonable rental value as
determined by Mortgagee for the use and occupancy of the Mortgaged Property or
of such part thereof as may be in the possession of Mortgagor or any affiliate
of Mortgagor, and upon default in any such payment Mortgagor and any such
affiliate will vacate and surrender the possession of the Mortgaged Property to
Mortgagee or to such receiver, and in default thereof may be evicted by summary
proceedings or otherwise. Mortgagor shall not accept prepayments of installments
of Rent to become due for a period of more than one month in advance (except for
security deposits and estimated payments of percentage rent, if any).
14. Notices. All notices, requests, demands and other
communications hereunder shall be given in accordance with the provisions of
subsection 10.2 of the Credit Agreement to Mortgagor and to Mortgagee as
specified therein.
15. No Oral Modification. This Mortgage may not be amended,
supplemented or otherwise modified except in accordance with the provisions of
subsection 7.15 of the Credit Agreement. Any agreement made by Mortgagor and
Mortgagee after the date of this Mortgage relating to this Mortgage shall be
superior to the rights of the holder of any intervening or subordinate lien or
encumbrance.
16. Partial Invalidity. In the event any one or more of the
provisions contained in this Mortgage shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included. Notwithstanding to the contrary anything contained in this Mortgage or
in any provisions of the Obligations or Loan Documents, the obligations of
Mortgagor and of any other obligor under the Obligations or Loan Documents shall
be subject to the limitation that Mortgagee shall not charge, take or receive,
nor shall Mortgagor or any other obligor be obligated to pay to Mortgagee, any
amounts constituting interest in excess of the maximum rate permitted by law to
be charged by Mortgagee.
17. Mortgagor's Waiver of Rights. To the fullest extent
permitted by law, Mortgagor waives the benefit of all laws now existing or that
may subsequently be enacted providing for (i) any appraisement before sale of
any portion of the Mortgaged Property, (ii) any extension of the time for the
enforcement of the collection of the Indebtedness or the creation or extension
of a period of redemption from any sale made in collecting such debt and (iii)
exemption of the Mortgaged Property from attachment, levy or sale under
execution or exemption from civil process. To the full extent Mortgagor may do
so, Xxxxxxxxx agrees that Xxxxxxxxx will not at any time insist upon, plead,
claim or take the benefit or advantage of any
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law now or hereafter in force providing for any appraisement, valuation, stay,
exemption, extension or redemption, or requiring foreclosure of this Mortgage
before exercising any other remedy granted hereunder and Xxxxxxxxx, for
Mortgagor and its successors and assigns, and for any and all persons ever
claiming any interest in the Mortgaged Property, to the extent permitted by law,
hereby waives and releases all rights of redemption, valuation, appraisement,
stay of execution, notice of election to mature or declare due the whole of the
secured indebtedness and marshalling in the event of foreclosure of the liens
hereby created.
18. Remedies Not Exclusive. Mortgagee shall be entitled to
enforce payment of the Obligations and performance of the Performance
Obligations and to exercise all rights and powers under this Mortgage or under
any of the other Loan Documents or other agreement or any laws now or hereafter
in force, notwithstanding some or all of the Obligations and Performance
Obligations may now or hereafter be otherwise secured, whether by mortgage,
security agreement, pledge, lien, assignment or otherwise. Neither the
acceptance of this Mortgage nor its enforcement, shall prejudice or in any
manner affect Mortgagee's right to realize upon or enforce any other security
now or hereafter held by Mortgagee, it being agreed that Mortgagee shall be
entitled to enforce this Mortgage and any other security now or hereafter held
by Mortgagee in such order and manner as Mortgagee may determine in its absolute
discretion. No remedy herein conferred upon or reserved to Mortgagee is intended
to be exclusive of any other remedy herein or by law provided or permitted, but
each shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. Every
power or remedy given by any of the Loan Documents to Mortgagee or to which it
may otherwise be entitled, may be exercised, concurrently or independently, from
time to time and as often as may be deemed expedient by Mortgagee. In no event
shall Mortgagee, in the exercise of the remedies provided in this Mortgage
(including, without limitation, in connection with the assignment of Rents to
Mortgagee, or the appointment of a receiver and the entry of such receiver on to
all or any part of the Mortgaged Property), be deemed a "mortgagee in
possession," and Mortgagee shall not in any way be made liable for any act,
either of commission or omission, in connection with the exercise of such
remedies.
19. Multiple Security. If (a) the Premises shall consist of
one or more parcels, whether or not contiguous and whether or not located in the
same county, or (b) in addition to this Mortgage, Mortgagee shall now or
hereafter hold one or more additional mortgages, liens, deeds of trust or other
security (directly or indirectly) for the Obligations upon other property in the
State in which the Premises are located (whether or not such property is owned
by Mortgagor or by others) or (c) both the circumstances described in clauses
(a) and (b) shall be true, then to the fullest extent permitted by law,
Mortgagee may, at its election, commence or consolidate in a single foreclosure
action all foreclosure proceedings against all such collateral securing the
Obligations (including the Mortgaged Property), which action may be brought or
consolidated in the courts of any county in which any of such collateral is
located. Mortgagor acknowledges that the right to maintain a consolidated
foreclosure action is a specific inducement to Mortgagee to extend the
Obligations, and Mortgagor expressly and irrevocably waives any objections to
the commencement or consolidation of the foreclosure proceedings in a single
action and any objections to the laying of venue or based on the grounds of
forum non conveniens which it may now or hereafter have. Xxxxxxxxx further
agrees that if Mortgagee shall be prosecuting one or more foreclosure or other
proceedings against a portion of the Mortgaged Property or against any
collateral other than the Mortgaged Property, which collateral directly or
indirectly secures the Obligations, or if Mortgagee shall have obtained a
judgment of foreclosure and sale or similar
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judgment against such collateral, then, whether or not such proceedings are
being maintained or judgments were obtained in or outside the State in which the
Premises are located, Mortgagee may commence or continue foreclosure proceedings
and exercise its other remedies granted in this Mortgage against all or any part
of the Mortgaged Property and Mortgagor waives any objections to the
commencement or continuation of a foreclosure of this Mortgage or exercise of
any other remedies hereunder based on such other proceedings or judgments, and
waives any right to seek to dismiss, stay, remove, transfer or consolidate
either any action under this Mortgage or such other proceedings on such basis.
Neither the commencement nor continuation of proceedings to foreclose this
Mortgage nor the exercise of any other rights hereunder nor the recovery of any
judgment by Mortgagee in any such proceedings shall prejudice, limit or preclude
Mortgagee's right to commence or continue one or more foreclosure or other
proceedings or obtain a judgment against any other collateral (either in or
outside the State in which the Premises are located) which directly or
indirectly secures the Obligations, and Xxxxxxxxx expressly waives any
objections to the commencement of, continuation of, or entry of a judgment in
such other proceedings or exercise of any remedies in such proceedings based
upon any action or judgment connected to this Mortgage, and Xxxxxxxxx also
waives any right to seek to dismiss, stay, remove, transfer or consolidate
either such other proceedings or any action under this Mortgage on such basis.
It is expressly understood and agreed that to the fullest extent permitted by
law, Mortgagee may, at its election, cause the sale of all collateral which is
the subject of a single foreclosure action at either a single sale or at
multiple sales conducted simultaneously and take such other measures as are
appropriate in order to effect the agreement of the parties to dispose of and
administer all collateral securing the Obligations (directly or indirectly) in
the most economical and least time-consuming manner.
20. Successors and Assigns. All covenants of Mortgagor
contained in this Mortgage are imposed solely and exclusively for the benefit of
Mortgagee and its successors and assigns, and no other person or entity shall
have standing to require compliance with such covenants or be deemed, under any
circumstances, to be a beneficiary of such covenants, any or all of which may be
freely waived in whole or in part by Mortgagee at any time if in its sole
discretion it deems such waiver advisable. All such covenants of Mortgagor shall
run with the land and bind Xxxxxxxxx, the successors and assigns of Mortgagor
(and each of them) and all subsequent owners, encumbrancers and tenants of the
Mortgaged Property, and shall inure to the benefit of Mortgagee, its successors
and assigns. The word "Mortgagor" shall be construed as if it read "Mortgagors"
whenever the sense of this Mortgage so requires and if there shall be more than
one Mortgagor, the obligations of the Mortgagors shall be joint and several.
21. No Waivers, etc. Any failure by Mortgagee to insist upon
the strict performance by Xxxxxxxxx of any of the terms and provisions of this
Mortgage shall not be deemed to be a waiver of any of the terms and provisions
hereof, and Mortgagee, notwithstanding any such failure, shall have the right
thereafter to insist upon the strict performance by Xxxxxxxxx of any and all of
the terms and provisions of this Mortgage to be performed by Xxxxxxxxx.
Mortgagee may release, regardless of consideration and without the necessity for
any notice to or consent by the holder of any subordinate lien on the Mortgaged
Property, any part of the security held for the obligations secured by this
Mortgage without, as to the remainder of the security, in any wise impairing or
affecting the lien of this Mortgage or the priority of such lien over any
subordinate lien.
22. Governing Law, etc. This Mortgage shall be governed by and
construed in
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accordance with the laws of the State in which the Premises are located, except
that Mortgagor expressly acknowledges that by its terms the Credit Agreement and
any obligation arising thereunder shall be governed and construed in accordance
with the laws of the State of New York, without regard to principles of conflict
of law, and for purposes of consistency, Xxxxxxxxx agrees that in any in
personam proceeding related to this Mortgage the rights of the parties to this
Mortgage shall also be governed by and construed in accordance with the laws of
the State of New York governing contracts made and to be performed in that
State, without regard to principles of conflict of law.
23. Certain Definitions. Unless the context clearly indicates
a contrary intent or unless otherwise specifically provided herein, words used
in this Mortgage shall be used interchangeably in singular or plural form and
the word "Mortgagor" shall mean "each Mortgagor or any subsequent owner or
owners of the Mortgaged Property or any part thereof or interest therein," the
word "Mortgagee" shall mean "Mortgagee or any successor agent for the Lenders,"
the word "Notes" or "Guarantee and Collateral Agreement" shall include any other
evidence of indebtedness secured by this Mortgage" and the words "Mortgaged
Property" shall include any portion of the Mortgaged Property or interest
therein. Whenever the context may require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns and pronouns shall include the plural and vice versa. The captions
in this Mortgage are for convenience or reference only and in no way limit or
amplify the provisions hereof.
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This Mortgage has been duly executed by Xxxxxxxxx on the date
first above written.
AMERICAN BUILDINGS COMPANY
By: /s/ X. XXXXXXX XXXXXXXX, XX.
-----------------------------------
X. Xxxxxxx Xxxxxxxx, Xx.
Executive Vice President and Chief
Financial Officer
Attest:
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Secretary
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
I, ________________a Notary Public, in and for said county and
state, hereby certify that X. Xxxxxxx Xxxxxxxx, Xx., whose name as Executive
Vice President and Chief Financial Officer of American Buildings Company, a
Delaware corporation is signed to the foregoing instrument, and who is known to
me, acknowledged before me on this day that, being informed of the contents of
the instrument, he, as officer and with full authority, executed the same
voluntarily for and as the act of said corporation; and that _________________
personally came before me this day and acknowledged that he is _____________
Secretary of American Buildings Corporation, and that by authority duly given
and as the act of the corporation, the foregoing instrument was signed in its
name by its Executive Vice President and Chief Financial Officer and attested by
him as its ___________ Secretary.
Given under my hand and official seal on this __th day
December, 1997.
------------------------
Notary Public
[Notarial Stamp]
Schedule A
Description of the Premises
[Attach Legal Description of all parcels]