Exhibit 10.1
--------------------------------------------------------------------------------
(Space Above This Line For Recording Data)
LOAN NUMBER: 417-8820517
COMMERCIAL REAL ESTATE MORTGAGE
FUTURE ADVANCES AND FUTURE OBLIGATIONS ARE SECURED BY THIS REAL ESTATE
MORTGAGE
This COMMERCIAL REAL ESTATE MORTGAGE ("Security Instrument") is made on August
18, 2006 between Robcor, LLC, a Kentucky Limited Liability, whose address is
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; the "Mortgagor(s)" and
Republic Bank & Trust Company whose address is 661 S. Hurstbourne Pkwy/PO Box
70749, Louisville, Kentucky 40222-5040 ("Lender"), which is organized and
existing under the laws of the state of Kentucky. Mortgagor in consideration of
loans extended by Lender up to a maximum principal amount of Four Hundred
Seventy-seven Thousand and 00/100 Dollars ($477,000.00) ("Maximum Principal
Indebtedness"), and for other valuable consideration, the receipt of which is
acknowledged, hereby mortgages, grants and conveys to Lender, its successors and
assigns, the following described property located in the County of Fayette,
State of Kentucky:
Address: 293 and ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Legal Description: See Exhibit A
Together with all easements, appurtenances abutting streets and alleys,
improvements, buildings, fixtures, tenements, hereditaments, equipment, rents,
income, profits and royalties, personal goods of whatever description and all
other rights and privileges including all minerals, oil, gas, water, water
▇▇▇▇▇, ditches, reservoirs, reservoir sites and dams located thereon and all
riparian and water rights and water stock associated therewith, payment awards,
amounts received from eminent domain, amounts received from any and all
insurance payments, and timber which may now or later be located, situated, or
affixed on and used in connection therewith (hereinafter called the "Property").
RELATED DOCUMENTS. The words "Related Documents" mean all promissory notes,
security agreements, prior mortgages, business loan agreements, construction
loan agreements, resolutions, guaranties, environmental agreements,
subordination agreements, assignments of leases and rents and any other
documents or agreements executed in connection with this Security Instrument
whether now or hereafter existing. The Related Documents are hereby made a part
of this Security Instrument by reference thereto, with the same force and effect
as if fully set forth herein.
INDEBTEDNESS. This Security Instrument secures the principal amount shown above
as may be evidenced by a promissory note or notes of even, prior or subsequent
date hereto, including future advances and every other indebtedness of any and
every kind now or hereafter owing from Mortgagor to Lender, howsoever created or
arising, whether primary, secondary or contingent, together with any interest or
charges provided in or arising out of such indebtedness, as well as the
agreements and covenants of this Security Instrument and all Related Documents
(hereinafter all referred to as the "Indebtedness").
MATURITY DATE. The Indebtedness, if not paid earlier, shall be due and payable
on August 18, 2016.
FUTURE ADVANCES. To the extent permitted by law, this Security Instrument will
secure future advances as if such advances were made on the date of this
Security Instrument regardless of the fact that from time to time there may be
no balance due under the note and regardless of whether the Lender is obligated
to make such future advances.
CROSS COLLATERALIZATION. It is the expressed intent of Mortgagor to cross
collateralize all of its Indebtedness and obligations to the Lender, howsoever
arising and whensoever incurred.
WARRANTIES. Mortgagor, for itself, its heirs, personal representatives,
successors, and assigns, represents. warrants, covenants and agrees with Lender,
its successors and assigns, as follows:
Performance of Obligations. Mortgagor promises to perform all terms,
conditions, and covenants of this Security Instrument and Related
Documents in accordance with the terms contained therein.
Defense and Title to Property. At the time of execution and delivery of
this instrument, Mortgagor is lawfully seised of the estate hereby
conveyed and has the exclusive right to mortgage, grant, convey and assign
the Property. Mortgagor covenants that the Property is unencumbered and
free of all liens, except for encumbrances of record acceptable to Lender.
Further, Mortgagor covenants that Mortgagor will warrant and defend
generally the title to the Property against any and all claims and demands
whatsoever, subject to the easements, restrictions, or other encumbrances
of record acceptable to Lender, as may be listed in the schedule of
exceptions to coverage in any abstract of title or title insurance policy
insuring Lender's interest in the Property.
Condition of Property. The Mortgagor promises at all times to preserve and
to maintain the Property and every part thereof in good repair, working
order, and condition and will from time to time, make all needful and
proper repairs so that the value of the Property shall not in any way be
impaired.
Removal of any Part of the Property. Mortgagor promises not to remove any
part of the Property from its present location, except for replacement,
maintenance and relocation in the ordinary course of business.
Alterations to the Property. Mortgagor promises to abstain from the
commission of any waste on the Property. Further, Mortgagor shall make no
material alterations, additions or improvements of any type whatever to
the Property, regardless of whether such alterations, additions or
improvements would increase the value of the Property, nor permit anyone
to do so except for tenant improvements and completion of items pursuant
to approved plans and specifications, without Lender's prior written
consent, which consent may be withheld by Lender in its sole discretion.
Mortgagor will comply with all laws and regulations of all public
authorities having jurisdiction over the premises relating to the use,
occupancy and maintenance thereof and shall upon request promptly submit
to Lender evidence of such compliance.
Due on Sale - Lender's Consent. Mortgagor shall not sell, further encumber
or otherwise dispose of, except as herein provided, any or all of its
interest in any part of or all of the Property without first obtaining the
written consent of Lender. If any encumbrance, lien, transfer or sale or
agreement for these is created, Lender may declare immediately due and
payable, the entire balance of the Indebtedness.
Insurance. Mortgagor promises to keep the Property insured against such
risks and in such form as may within the sole discretion of Lender be
acceptable, causing Lender to be named as loss payee or if requested by
Lender, as mortgagee. The insurance company shall be chosen by Mortgagor
subject to Lender's approval, which shall not be unreasonably withheld.
All insurance policies must provide that Lender will get a minimum of 10
days notice prior to cancellation. At Lender's discretion, Mortgagor may
be required to produce receipts of paid premiums and renewal policies. If
Mortgagor fails to obtain the required coverage, Lender may do so at
Mortgagor's expense. Mortgagor hereby directs each and every insurer of
the Property to make payment of loss to Lender with the proceeds to be
applied, only at Lender's option, to the repair and replacement of the
damage or loss or to be applied to the Indebtedness with the surplus, if
any, to be paid by Lender to Mortgagor.
Payment of Taxes and Other Applicable Charges. Mortgagor promises to pay
and to discharge liens, encumbrances, taxes, assessments, lease payments
and any other charges relating to the Property when levied or assessed
against Mortgagor or the Property.
Environmental Laws and Hazardous or Toxic Materials. Mortgagor and every
tenant have been, are presently and shall continue to be in strict
compliance with any applicable local, state and federal environmental laws
and regulations. Further, neither Mortgagor nor any tenant shall
manufacture, store, handle, discharge or dispose of hazardous or toxic
materials as may be defined by any state or federal law on the Property,
except to the extent the existence of such materials has been presently
disclosed in writing to Lender. Mortgagor will immediately notify Lender
in writing of any assertion or claim made by any party as to the possible
violation of applicable state and federal environmental laws including the
location of any hazardous or toxic materials on or about the Property.
Mortgagor indemnifies and holds Lender harmless from any liability or
expense of whatsoever nature incurred directly or indirectly as a result
of Mortgagor's violation of applicable local, state and federal
environmental laws and regulations or Mortgagor's involvement with
hazardous or toxic materials.
Financial Information. Mortgagor agrees to supply Lender such financial
and other information concerning its affairs and the status of any of its
assets as Lender, from time to time, may reasonably request. Mortgagor
further agrees to permit Lender to verify accounts as well as to inspect,
copy and to examine the books, records and files of Mortgagor.
Lender's Right to Enter. The Lender or Lender's agents shall have the
right and access to inspect the Property at all reasonable times in order
to attend to Lender's interests and ensure compliance with the terms of
this Security Instrument. If the Property, or any part thereof, shall
require inspection, repair or maintenance which the Mortgagor has failed
to provide, the Lender, after reasonable notice, may enter upon the
Property to effect such obligation; and the cost thereof shall be added to
the Indebtedness and paid on the Lender's demand by the Mortgagor.
ASSIGNMENT OF LEASES AND RENTS. As additional security for the payment of the
Indebtedness and the performance of the covenants contained herein, Mortgagor
hereby assigns and transfers over to Lender all rents, income and profits
("Rents") under any present or future leases, subleases or licenses of the
Property, including any guaranties, extensions, amendments or renewals thereof,
from the use of the Property. So long as Mortgagor is not in default, Mortgagor
may receive, collect and enjoy all Rents accruing from the Property, but not
more than one month in advance of the due date. Lender may also require
Mortgagor, tenant and any other user of the Property to make payments of Rents
directly to Lender. However, by receiving any such payments, Lender is not, and
shall not be considered, an agent for any party or entity. Any amounts collected
may, at the Lender's sole discretion, be applied to protect the Lender's
interest in the Property, including but not limited to the payment of taxes and
insurance premiums and to the Indebtedness. At Lender's sole discretion, all
leases, subleases and licenses must first be approved by Lender.
CONDEMNATION. Mortgagor shall give Lender notice of any action taken or
threatened to be taken by private or public entities to appropriate the Property
or any part thereof, through condemnation, eminent domain or any other action.
Further, Lender shall be permitted to participate or intervene in any of the
above described proceedings in any manner it shall at its sole discretion
determine. Lender is hereby given full power, right and authority to receive and
receipt for any and all damages awarded as a result of the full or partial
taking or appropriation and in its sole discretion, to apply said awards to the
Indebtedness, whether or not then due or otherwise in accordance with applicable
law. Unless Lender otherwise agrees in writing, any application of proceeds to
the Indebtedness shall not extend or postpone the due date of the payments due
under the Indebtedness or change the amount of such payments.
MORTGAGOR'S ASSURANCES. At any time, upon a request of Lender, Mortgagor will
execute and deliver to the Lender, and if appropriate, cause to be recorded,
such further mortgages, assignments. assignments of leases and rents, security
agreements, pledges, financing statements, or such other document as Lender may
require, in Lender's sole discretion, to effectuate, complete and to perfect as
well as to continue to preserve the Indebtedness, or the lien or security
interest created by this Security Instrument.
ATTORNEY-IN-FACT. Mortgagor appoints Lender as attorney-in-fact on behalf of
Mortgagor. If Mortgagor fails to fulfill any of Mortgagor's obligations under
this Security Instrument or any Related Documents, including those obligations
mentioned in the preceding paragraph, Lender as attorney-in-fact may fulfill the
obligations without notice to Mortgagor. This power of attorney shall not be
affected by the disability of the Mortgagor.
EVENTS OF DEFAULT. The following events shall constitute default under this
Security Instrument (each an "Event of Default"):
(a) Failure to make required payments when due under Indebtedness;
(b) Failure to perform or keep any of the covenants of this Security
Instrument or a default under any of the Related Documents;
(c) The making of any oral or written statement or assertion to the
Lender that is false or misleading in any material respect by
Mortgagor or any person obligated on the Indebtedness;
(d) The death, dissolution, insolvency, bankruptcy or receivership
proceeding of Mortgagor or of any person or entity obligated on the
Indebtedness;
(e) Any assignment by the Mortgagor for the benefit of the Mortgagor's
creditors;
(f) A material adverse change occurs in the financial condition,
ownership or management of Mortgagor or any person obligated on the
Indebtedness; or
(g) The Lender deems itself insecure for any reason whatsoever.
REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default, Lender may,
without demand or notice, pay any or all taxes, assessments, premiums, and liens
required to be paid by Mortgagor, effect any insurance provided for herein, make
such repairs, cause the abstracts of title or title insurance policy and tax
histories of the Property to be certified to date, or procure new abstracts of
title or title insurance and tax histories in case none were furnished to it,
and procure title reports covering the Property, including surveys. The amounts
paid for any such purposes will be added to the Indebtedness and will bear
interest at the rate of interest otherwise accruing on the Indebtedness until
paid. In the event of foreclosure, the abstracts of title or title insurance
shall become the property of the Lender. All abstracts of title, title
insurance, tax histories, surveys, and other documents pertaining to the
Indebtedness will remain in Lender's possession until the Indebtedness is paid
in full. IN THE EVENT OF THE SALE OF THIS PROPERTY UNDER THE PROCEDURE FOR
FORECLOSURE OF A SECURITY INSTRUMENT BY ADVERTISEMENT, AS PROVIDED BY APPLICABLE
LAW, OR IN THE EVENT THE LENDER EXERCISES ITS RIGHTS UNDER THE ASSIGNMENT OF
LEASES AND RENTS, THE MORTGAGOR HEREBY WAIVES ANY RIGHT TO ANY NOTICE OTHER THAN
THAT PROVIDED FOR SPECIFICALLY BY STATUTE, OR TO ANY JUDICIAL HEARING PRIOR TO
SUCH SALE OR OTHER EXERCISE OF RIGHTS.
Upon the occurrence of an Event of Default, Lender may, without notice unless
required by law, and at its option, declare the entire Indebtedness due and
payable, as it may elect, regardless of the date or dates of maturity thereof
and, if permitted by state law, is authorized and empowered to sell or to cause
the Property to be sold at public auction, and to execute and deliver to the
purchaser or purchasers at such sale any deeds of conveyance good and sufficient
at law, pursuant to the statute in such case made and provided, and out of the
proceeds of the sale to retain the sums then due hereunder and all costs and
charges of the sale, including attorneys' fees, rendering any surplus to the
party or parties entitled to it. Any such sale or a sale made pursuant to a
judgment or a decree for the foreclosure hereof may, at the option of Lender, be
made en masse. The commencement of proceedings to foreclose this Mortgage in any
manner authorized by law shall be deemed as exercise of the above option. Upon
the occurrence of an Event of Default, Lender shall immediately be entitled to
make application for and obtain the appointment of a receiver for the Property
and of the earnings, income, issue and profits of it, with the powers as the
court making the appointments confers. Mortgagor hereby irrevocably consents to
such appointment and waives notice of any application therefor.
NO WAIVER. No delay or failure of Lender to exercise any right, remedy, power or
privilege hereunder shall affect that right, remedy, power or privilege nor
shall any single or partial exercise thereof preclude the exercise of any right,
remedy, power or privilege. No Lender delay or failure to demand strict
adherence to the terms of this Security Instrument shall be deemed to constitute
a course of conduct inconsistent with Lender's right at any time, before or
after an event of default, to demand strict adherence to the terms of this
Security Instrument and the Related Documents.
JOINT AND SEVERAL LIABILITY. If this Security Instrument should be signed by
more than one person, all persons executing this Security Instrument agree that
they shall be jointly and severally bound, where permitted by law.
SURVIVAL. The Lender's rights in this Security Instrument will continue in its
successors and assigns. This Security Instrument is binding on all heirs,
executors, administrators, assigns and successors of the Mortgagor.
NOTICES AND WAIVER OF NOTICE. Unless otherwise required by applicable law, any
notice or demand given by Lender to any party is considered effective when it is
deposited in the United States Mail with the appropriate postage, mailed to the
address of the party given at the beginning of this Security Instrument unless
an alternative address has been provided to Lender in writing. To the extent
permitted by law, Mortgagor waives notice of Lender's acceptance of this
Security Instrument, defenses based on suretyship, any defense arising from any
election by Lender under the United States Bankruptcy Code, Uniform Commercial
Code, as enacted in the state where the Lender is located or other applicable
law or in equity, demand, notice of acceleration, notice of nonpayment,
presentment, protest, notice of dishonor and any other notice.
TO THE EXTENT PERMITTED BY LAW, MORTGAGOR WAIVES ANY RIGHT TO NOTICE, OTHER THAN
THE NOTICE PROVIDED ABOVE, AND WAIVES ANY RIGHT TO ANY HEARING, JUDICIAL OR
OTHERWISE, PRIOR TO THE LENDER EXERCISING ITS. RIGHTS UNDER THIS ASSIGNMENT.
WAIVER OF APPRAISEMENT RIGHTS. Mortgagor waives all appraisement rights relating
to the Property to the extent permitted by law.
LENDER'S EXPENSES. Mortgagor agrees to pay all expenses incurred by Lender in
connection with enforcement of its rights under the Indebtedness, this Security
Instrument or in the event Lender is made party to any litigation because of the
existence of the Indebtedness or this Security Instrument, as well as court
costs, collection charges and reasonable attorneys' fees and disbursements.
ASSIGNABILITY. Lender may assign or otherwise transfer this Security Instrument
or any of Lender's rights under this Security Instrument without notice to
Mortgagor. Mortgagor may not assign this Security Instrument or any part of the
Security Instrument without the express written consent of Lender.
GOVERNING LAW AND JURISDICTION. This Security Instrument will be governed by the
laws of the State of Kentucky.
SEVERABILITY. If a court of competent jurisdiction determines any term or
provision of this Security Instrument is invalid or prohibited by applicable
law, that term or provision will be ineffective to the extent required. Any term
or provision that has been determined to be invalid or prohibited will be
severed from the rest of the Security Instrument without invalidating the
remainder of either the affected provision or this Security Instrument.
WAIVER OF JURY TRIAL. All parties to this Mortgage waive any right to trial by
jury to the extent allowed by law. This jury trial waiver applies to any claims
or disputes related or incidental to the relationship established between the
parties to this Mortgage.
ORAL AGREEMENTS DISCLAIMER. This Security Instrument represents the final
agreement between the parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties.
By signing this Security Instrument, each Mortgagor acknowledges that all
provisions have been read and understood. Signed and sealed by Mortgagor (s):
Robcor, LLC
X__________________________ X__________________________
By: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ Date By: V ▇▇▇▇▇▇▇ ▇▇▇▇▇ Date
The above signatures have been Witnessed by:
X__________________________ X__________________________
Name: Date Name: Date
BUSINESS ACKNOWLEDGEMENT
STATE OF KENTUCKY )
)ss
COUNTY OF FAYETTE )
This instrument was acknowledged on the ________________________, by:
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, Member and V ▇▇▇▇▇▇▇ ▇▇▇▇▇, Member on behalf of Robcor, LLC, a
Kentucky Limited Liability Company, who personally appeared before me.
In witness whereof, I hereunto set my hand and, if applicable, official seal.
My commission expires: _________ X__________________________
State at Large
Notary Public
(Offical Seal)
________________________________________________________________________________
________________________________________________________________________________
THIS INSTRUMENT WAS PREPARED BY: AFTER RECORDING RETURN TO:
▇▇▇▇▇ ▇▇▇▇▇▇▇ PSC Republic Bank & Trust Company
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
X_______________________________________
________________________________________________________________________________
EXHIBIT "A"
All of ▇▇▇ ▇▇▇. ▇ ▇▇▇ ▇, ▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Subdivision to
the City of Lexington as shown by plat thereof of record in Plat Cabinet A,
Slide 660, in the Fayette County Clerk's Office; and known as 293 and ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇; and
BEING the same property conveyed to Robcor, LLC, a Kentucky limited liability
company, by ▇▇▇▇▇▇▇ Enterprises, LLC, a Kentucky limited liability company (the
successor in interest to ▇▇▇▇▇▇▇ Paving & Construction Company, Inc., a Kentucky
corporation), through deed dated March 9, 2005, of record in Deed Book 2534,
Page 94, in the Fayette County Clerk's Office.
