Exhibit 10.6


 


Document prepared by and

upon recordation to be

returned to:


 


Rex A. Palmer, Esq.


Mayer Brown LLP


71 South Wacker Drive


Chicago, Illinois 60606


 




 





 


 


MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT


OF LEASES AND RENTS AND


FIXTURE FILING


 


 


dated as of January 15, 2009


 


 


From


 


BRAD FOOTE GEAR WORKS, INC., an Illinois
corporation

formerly known as BFG Acquisition Corp., as Mortgagor


 


 


To


 


 


BANK OF AMERICA, N.A., as Mortgagee


 




 





 

















 


MORTGAGE, SECURITY AGREEMENT

AND FIXTURE FILING


 


                MORTGAGE,
SECURITY AGREEMENT AND FIXTURE FILING, dated as of January 15, 2009 (this “Mortgage”), made by BRAD FOOTE GEAR WORKS,
INC, an Illinois corporation formerly known as BFG Acquisition Corp. (the “Mortgagor”), with an address at 1309 South
Cicero Avenue, Cicero, Illinois, 60650 to BANK OF AMERICA, N.A., a national
banking association with an address at One Federal Street, Boston,
Massachusetts 02110 (the “Mortgagee”).


 


Preliminary
Statement


 


BFG
Acquisition Corp. (now known as Brad Foote Gear works, Inc.) and LaSalle
Bank NI (now known as Bank of America, N.A.) entered into a Loan and Security
Agreement dated as of January 17, 1997 (as heretofor amended, as amended
by an Omnibus Amendment Agreement of even date herewith and as hereafter
amended, modified and restated from time to time, the “Loan Agreement”).  Pursuant to the Loan Agreement the Mortgagee
has agreed to loan the Mortgagor and its affiliates up to the aggregate amount
of $36,974,322.98 pursuant to and subject to the terms of the following
promissory notes (as amended by an Omnibus Amendment Agreement of even date
herewith and as hereafter amended, modified and restated from time to time
collectively, the “Notes”):


 


1.             $7,000,000
Revolving Line of Credit Note dated December 8, 2008 from the Mortgagor to
the order of Mortgagee (the “Revolving Line of Credit Note”) due March 15,
2009.


 


2.             $11,000,000
Amended and Restated Equipment Line Note (Non-Revolving Line With Conversion)
dated November 10, 2006, from the Mortgagor to the order of Mortgagee (as
modified by Note Modification Agreement dated as of December 8, 2008,  the “Equipment Loan A Note”) which is
payable in monthly principal payments of $183,333.33 plus interest commencing May 31,
2007 with a final payment due April 30, 2012.


 


3.             $9,000,000
Equipment Line Note (Non-Revolving Line With Conversion) dated June 30,
2007, from the Mortgagor to the order of Mortgagee (as modified by Note
Modification Agreement dated as of December 8, 2008, the “Equipment
Loan B Note”) with monthly principal payments of $147,958.13 plus interest
commencing July 31, 2008 with a final payment due June 30, 2013.


 


4.             $7,899,332.98
Consolidated Term Note dated February 1, 2006, from the Mortgagor to the
order of Mortgagee (as modified by Note Modification Agreement dated as of December 8,
2008, the “Term Loan Note”) with monthly principal payments of
$131,655.55 plus interest commencing February 28, 2006 with a final
payment due January 31, 2011.


 


5.             $2,075,000
Term Note dated January 31, 2008 from 1309 South Cicero Avenue, LLC and
5100 Neville Road, LLC (collectively, the “Subsidiaries”) to the order
of Mortgagee (as modified by Note Modification Agreement dated as of December 8,
2008, the “Subsidiary 


 

















 


Note”) payable in monthly principal
payments of $34,583.33 plus interest with a final payment due January 31,
2013.


 


The Subsidiaries and the Mortgagor heretofore or hereafter may enter
into interest rate, currency or commodity swap agreements, cap agreements or
collar agreements or other agreements or arrangements designed to protect such
Person against fluctuations in interest rates, currency exchange rates or
commodity prices with the Mortgagee or its affiliates (as hereafter amended,
modified and restated from time to time collectively, the “Hedging
Agreements”) or receive treasury or cash management services from the
Mortgagee (the “Bank Services”).


 


Pursuant to the Loan Agreement the Mortgagor has executed and delivered
to the Mortgagee a Unconditional Guaranty dated as of January 31, 2008
(the “Guaranty”) whereby the Mortgagor guaranteed the obligations of the
Subsidiaries under the Subsidiary Note and any Hedging Agreement and the other
Subsidiary Loan Documents.


 


It is a condition, among others, to the extension by the Mortgagee of
the term of the Revolving Line of Credit Note that the Mortgagor shall have
executed and delivered this Mortgage to the Mortgagee.


 


NOW, THEREFORE, in consideration of the premises and to induce the
Mortgagee to amend the Loan Agreement and extend the term of the loan evidenced
by the Revolving Line of Credit Note, the Mortgagor hereby agrees with the
Mortgagee, as follows:


 


TO SECURE PAYMENT OF THE INDEBTEDNESS (DEFINED BELOW) INCLUDING ALL THE
AMOUNTS ADVANCED TO OR FOR THE BENEFIT OF THE MORTGAGOR UNDER THE LOAN
AGREEMENT AND THE SUBSIDIARY NOTE AND THE OBLIGATIONS OF THE MORTGAGOR UNDER
THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, THE GUARANTY, THE SUBSIDIARY
NOTE AND THE OTHER SUBSIDIARY LOAN DOCUMENTS, ALL HEDGING AGREEMENTS AND IN
CONNECTION WITH ANY BANK SERVICES THE MORTGAGOR HEREBY MORTGAGES, GRANTS,
ASSIGNS, TRANSFERS, WARRANTS AND SETS OVER TO THE MORTGAGEE, AND GRANTS THE
MORTGAGEE A SECURITY INTEREST IN:


 


(A) the parcel(s) of real property described
on Exhibit A (the “Land”); all buildings, structures, Fixtures,
Equipment, and other improvements of every kind existing at any time and from
time to time on or under the Land, together with any and all appurtenances to
such buildings, structures or improvements, including sidewalks, utility pipes,
conduits and lines, parking areas and roadways, and including all
modifications, alterations, renovations, improvements and other additions to or
changes in the Improvements at any time (“Improvements”);
all agreements, easements, rights of way or use, rights of ingress or egress,
privileges, appurtenances, tenements, hereditaments and other rights and
benefits at any time belonging or pertaining to the Land or the Improvements,
including, without limitation, the use of any streets, ways, alleys, vaults or
strips of land adjoining, abutting, adjacent or contiguous to the Land and all
permits, licenses and rights, whether or not of record, appurtenant to the Land
(“Appurtenant Rights”; the Land,
Improvements, Appurtenant Rights, Fixtures and Equipment being collectively
referred to as the “Property”);


 


2

















 


(B) all the estate, right, title, claim or demand
whatsoever of the Mortgagor, in possession or expectancy, in and to the
Property or any part thereof;


 


(C) all right, title and interest of the
Mortgagor in and to all of the fixtures, furnishings and fittings 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 the 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
Property, (all of the foregoing in this paragraph being referred to as the “Fixtures”);


 


(D) all right, title and interest of the
Mortgagor in and to all of the fixtures, chattels, business machines,
machinery, apparatus, equipment, furnishings, fittings 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 the Mortgagor and now or subsequently attached to,
or contained in the Property, 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, refrigerators, display
cases, 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 being referred to as the “Equipment”);


 


(E) all right, title and interest of the
Mortgagor in and to all substitutes and replacements of, and all additions and
improvements to, the Improvements and the Fixtures and Equipment, subsequently
acquired by the Mortgagor or constructed, assembled or placed by the Mortgagor
on the Land, immediately upon such acquisition, release, construction,
assembling or placement, including, without limitation, any and all building
materials whether stored at the Property or offsite, and, in each such case,
without any further conveyance, mortgage, assignment or other act by the
Mortgagor;


 


(F) all right, title and interest of the
Mortgagor in and to all unearned premiums under insurance policies now or
subsequently obtained by the Mortgagee relating to the Property or the Fixtures
and the 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: and all awards and other compensation (“Condemnation
Awards”), including the interest payable thereon and the right to collect
and receive the same, made to the present or any subsequent owner of the
Property for the taking by eminent domain, condemnation or otherwise, of all or
any part of the Property or any easement or other right therein;


 


3

















 


(G) all right, title and interest of the
Mortgagor in and to all consents, licenses, building permits, certificates of
occupancy and other governmental approvals relating to construction,
completion, occupancy, use or operation of the Property or any part thereof;


 


(H) all rights of the Mortgagor under all leases,
licenses, occupancy agreements, concessions or other arrangements, whether
written or oral, whether now existing or entered into at any time hereafter,
whereby any Person agrees to pay money to the Mortgagor or any consideration
for the use, possession or occupancy of, or any estate in, the Land or any part
thereof, and all rents, income, profits, benefits, avails, advantages and
claims against guarantors under any thereof (all of the foregoing is herein
referred to collectively as the “Leases”);


 


(I) all rents, issues, profits, royalties,
avails, income and other benefits derived by the Mortgagor from the Land (all
of the foregoing is herein collectively called the “Rents”);
and


 


(J) 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 the Mortgagor and described in the foregoing
clauses (A) through (I) are collectively referred to as the “Mortgaged Property”); provided, however,
that notwithstanding anything hereinabove to the contrary the maximum principal
amount of the Indebtedness secured hereby at any one time shall not exceed
$72,000,000, plus all costs of enforcement and collection of this Mortgage, the
Guaranty, the Notes, the Loan Agreement and the other Loan Documents, plus the
total amount of any advances made pursuant to the Loan Documents to protect the
collateral and the security interest and lien created hereby; together with
interest on all of the foregoing as provided in the Loan Documents.


 


TO HAVE AND TO HOLD the Mortgaged Property and the rights and
privileges hereby granted unto the Mortgagee, its successors and assigns for
the uses and purposes set forth, until all amounts owed by and obligations of
the Mortgagor to the Mortgagee under the Loan Agreement, the Subsidiary Note,
the Guaranty, the other Loan Documents, the other Subsidiary Loan Documents and
any Hedging Agreements or in connection with any Bank Services (collectively, the
“Indebtedness”) are paid.


 


1. Definitions.  Capitalized terms used but not otherwise
defined in this Mortgage shall have the respective meanings specified in the
Loan Agreement .


 


2. Payment of
Indebtedness.  The Mortgagor
shall pay the Indebtedness in accordance with the terms of the Loan Agreement,
the Guaranty, the Subsidiary Note and each Hedging Agreement and perform each
term to be performed by it under the Loan Agreement, the Guaranty, the
Subsidiary Note, each Hedging Agreement and the other Loan Documents and
Subsidiary Loan Documents.


 


3. Insurance.  The Mortgagor will at all times maintain or
cause to be maintained on the Improvements and on all other Mortgaged Property,
all casualty insurance required at any time or from time to time by the Loan
Agreement.  At the request of the
Mortgagee, Mortgagor shall deliver to and keep deposited with the Mortgagee
original certificates and copies of all such policies of casualty insurance
maintained on the Mortgaged Property and renewals thereof, with premiums
prepaid, and with standard non-contributory mortgagee and loss payable clauses 


 


4

















 


satisfactory to the Mortgagee, and clauses providing
for not less than 10 days’ prior written notice to the Mortgagee of
cancellation of such policies attached thereto in favor of the Mortgagee, its
successors and assigns.  While no Event
of Default has occurred and is continuing any loss paid to the Mortgagee or
Mortgagor under any such policies may be applied by the Mortgagor to rebuild or
repair the damaged or destroyed Improvements or other Mortgaged Property.  The Mortgagor further agrees that, upon the
occurrence and during the continuance of an Event of Default, any loss paid to
the Mortgagee or Mortgagor under any of such policies shall be applied, at the
option of the Mortgagee, toward pre-payment of the Indebtedness as provided in
the Loan Agreement, or to the rebuilding or repairing of the damaged or
destroyed Improvements or other Mortgaged Property, as the Mortgagee in its
sole and unreviewable discretion may elect. The Mortgagor hereby empowers the
Mortgagee, in its reasonably exercised discretion, upon the occurrence and
during the continuance of an Event of Default, to settle, compromise and adjust
any and all claims or rights under any insurance policy maintained by the
Mortgagor relating to the Mortgaged Property. 
At all times other than during the continuance of an Event of Default,
the Mortgagor shall have the exclusive right to settle, compromise, and adjust
any and all claims, rights, or proceeds under any insurance policy maintained
by the Mortgagor relating to the Mortgaged Property.  In the event of foreclosure of this Mortgage
or other transfer of title to the Land in extinguishment of the indebtedness
secured hereby, all right, title and interest of the Mortgagor in and to any
insurance policies then in force shall pass to the purchaser or grantee.  Nothing contained in this Mortgage shall
create any responsibility or obligation on the Mortgagee to collect any amounts
owing on any insurance policy or resulting from any condemnation, to rebuild or
replace any damaged or destroyed Improvements or other Mortgaged Property or to
perform any other act hereunder.  The Mortgagee
shall not by the fact of approving, disapproving, accepting, preventing,
obtaining or failing to obtain any insurance, incur any liability for or with
respect to the amount of insurance carried, the form or legal sufficiency of
insurance contracts, solvency of insurance companies, or payment or defense of
lawsuits, and the Mortgagor hereby expressly assumes full responsibility
therefor and all liability, if any, with respect thereto.


 


4. Eminent Domain.  In case the Mortgaged Property, or any part
or interest in any thereof, is taken by condemnation, then upon the occurrence
and during the continuance of an Event of Default, the Mortgagee is empowered
to collect and receive all Condemnation Awards which may be paid for any
property taken or for damages to any property not taken (all of which the
Mortgagor hereby assigns to the Mortgagee), and all Condemnation Awards so
received shall be forthwith applied by the Mortgagee, as it may elect in its
sole and unreviewable discretion, to the prepayment of the Indebtedness, or to
the repair and restoration of any property not so taken or damaged; provided, however,
as long as no Event of Default has occurred and is continuing that any
Condemnation Awards payable by reason of the taking of less than all of the
Mortgaged Property shall be made available to the extent required, as
determined by the Mortgagee in its reasonable discretion, for the repair or
restoration of any Mortgaged Property not so taken.  The Mortgagor hereby empowers the Mortgagee,
in the Mortgagee’s reasonably exercised discretion, upon the occurrence and
during the continuance of an Event of Default to settle, compromise and adjust
any and all claims or rights arising under any condemnation or eminent domain
proceeding relating to the Mortgaged Property or any portion thereof.  At all times other than during the
continuance of an Event of Default, the Mortgagor shall have the exclusive
right to settle, compromise, and adjust any and all claims, rights, or proceeds
under any insurance policy maintained by the Mortgagor relating to the
Mortgaged Property.


 


5

















 


5. Assignment of Leases and Rent. All of the
Mortgagor’s interest in and rights under the Leases now existing or hereafter
entered into, and all of the Rents, whether now due, past due, or to become
due, and including all prepaid rents and security deposits, and all other
amounts due with respect to any of the other Mortgaged Property, are hereby
absolutely, presently and unconditionally assigned and conveyed to the
Mortgagee to be applied by the Mortgagee in payment of all sums due with
respect to, the Indebtedness and all other sums payable under this
Mortgage.  At all times other than during
the continuance of any Event of Default, the Mortgagor shall have a license to
collect and receive all Rents and other amounts, which license shall be
terminated at the sole option of the Mortgagee, without regard to the adequacy
of its security hereunder and without notice to or demand upon the Mortgagor,
upon the occurrence and during the continuance of any Default.  It is understood and agreed that neither the
foregoing assignment to the Mortgagee nor the exercise by the Mortgagee of any
of its rights or remedies under Section 7
hereof shall be deemed to make the Mortgagee a “mortgagee-in-possession” or
otherwise responsible or liable in any manner with respect to the Mortgaged
Property or the use, occupancy, enjoyment or any portion thereof, unless and
until the Mortgagee, in person or by agent, assumes actual possession thereof.  Nor shall appointment of a receiver for the
Mortgaged Property by any court at the request of the Mortgagee or by agreement
with the Mortgagor, or the entering into possession of any part of the
Mortgaged Property by such receiver, be deemed to make the Mortgagee a mortgagee-in-possession
or otherwise responsible or liable in any manner with respect to the Mortgaged
Property or the use, occupancy, enjoyment or operation of all or any portion
thereof.  Upon the occurrence and during
the continuance of any Event of Default, this shall constitute a direction to
and full authority to each lessee under any Leases, each guarantor of any of
the Leases and any other Person obligated under any of the Mortgaged Property
to pay all Rents and other amounts owing to the Mortgagor with respect to the
Mortgaged Property to the Mortgagee without proof of the Event of Default
relied upon.  The Mortgagor hereby
irrevocably authorizes each such Person to rely upon and comply with any notice
or demand by the Mortgagee for the payment to the Mortgagee of any Rents and
other amounts due or to become due to the Mortgagor with respect to the
Mortgaged Property.


 


6. Other Covenants.  At any time and from time to time, upon the
written request of the Mortgagee, and at the sole expense of the Mortgagor, the
Mortgagor will promptly and duly execute and deliver such further instruments
and documents (which instruments and documents shall be in form and substance
reasonably acceptable to Mortgagor) and take such further actions as the
Mortgagee reasonably may request for the purposes of obtaining or preserving
the full benefits of this Mortgage and of the rights and powers granted by this
Mortgage.


 


7. Default: Remedies.
(a) If an Event of Default has occurred and is continuing:


 


(i)            In
addition to all other remedies available to the Mortgagee at law or equity, the
Mortgagee may proceed by suit to foreclose this Mortgage, to sue the Mortgagor
for damages on account of or arising out of said continuing Event of Default or
for specific performance of any provision contained herein, or to enforce any
other appropriate legal or equitable right or remedy.  The Mortgagee shall be entitled, as a matter
of right, upon bill filed or other proper legal proceedings being commenced for
the foreclosure of this Mortgage, to the appointment by any competent court or
tribunal, without notice to the Mortgagor or any other party, of a receiver of
the rents, issues and profits of the Mortgaged Property, with power to lease
and control the Mortgaged 


 


6

















 


Property and with
such other powers as may be deemed necessary. 
The Mortgagor hereby authorizes and empowers the Mortgagee or the
auctioneer at any foreclosure sale had hereunder, for and in the name of the
Mortgagor, to execute and deliver to the purchaser or purchasers of any of the
Mortgaged Property sold at foreclosure good and sufficient deeds of conveyance
or bills of sale thereto.  All payments
received by the Mortgagee as proceeds of the Mortgaged Property, or any part thereof,
as well as any and all amounts realized by the Mortgagee in connection with the
enforcement of any right or remedy under or with respect to this Mortgage,
shall be applied by the Mortgagee as set forth in Section 16 of the Loan
Agreement.  Several sales may be made
under the provisions hereof without exhausting the right of sale for any
remaining part of the Indebtedness whether then matured or unmatured, the
purpose hereof being to provide for a foreclosure and sale of the Mortgaged
Property for any matured part of the Indebtedness without exhausting any power
of foreclosure and the power to sell the Mortgaged Property for any other part
of the Indebtedness, whether matured at the time or subsequently maturing.  In the event any excess sales proceeds remain
after payment of costs of enforcement and the matured Indebtedness such excess
shall be applied as provided in the Loan Agreement.


 


(ii)           whether
before or after institution of proceedings to foreclose the lien of this
Mortgage or before or after the sale thereunder, the Mortgagee shall be
entitled, in its discretion, to do all or any of the following: (a) enter
and take actual possession of the rents, the leases and other Mortgaged
Property relating thereto or any part thereof personally, or by its agents or
attorneys, and exclude the Mortgagor therefrom; (b) with or without
process of law, enter upon and take and maintain possession of copies of all of
the documents, books, records, papers and accounts of the Mortgagor relating
thereto, (provided Mortgagor will be supplied with copies of such documents,
books and records if Mortgagor so requests); (c) as attorney-in-fact or
agent of the Mortgagor, or in its own name as mortgagee and under the powers
herein granted, hold, operate, manage and control the rents, the leases and
other Mortgaged Property relating thereto and conduct the business, if any,
thereof either personally or by its agents, contractors or nominees, with full
power to use such measures, legal or equitable, as in its discretion or in the
discretion of its successors or assigns may be deemed proper or necessary to
enforce the payment of the rents, the leases and other Mortgaged Property
relating thereto (including actions for the recovery of rent, actions in
forcible detainer and actions in distress of rent); (d) during the
continuance of an Event of Default cancel or terminate any lease or sublease
for any cause or on any ground which would entitle the Mortgagor to cancel the
same; (e) elect to disaffirm any lease or sublease made subsequent hereto
or subordinated to the lien hereof; (f) make all necessary or proper
repairs, decorations, renewals, replacements, alterations, additions,
betterments and improvements to the Mortgaged Property that, in its discretion,
may seem appropriate; (g) insure and reinsure the Mortgaged Property for
all risks incidental to the Mortgagee’s possession, operation and management
thereof; and (h) receive all such rents and proceeds, and perform such
other acts in connection with the management and operation of the Mortgaged
Property, as the Mortgagee in its discretion may deem proper, the Mortgagor
hereby granting the Mortgagee full power and authority to exercise each and
every one of the rights, privileges and powers contained herein at any and all
times after any Event of Default which is continuing without notice to the
Mortgagor or any other Person.  The


 


7
















 


Mortgagee, in the
exercise of the rights and powers conferred upon it hereby, shall have full
power to use and apply the rents to the payment of or on account of the
following, in such order as it may determine: (xx) to the payment of the
operating expenses of the Mortgaged Property, including the reasonable cost of
management and leasing thereof (which shall include reasonable compensation to
the Mortgagee and its agents or contractors, if management be delegated to
agents or contractors, and it shall also include reasonable lease commissions
and other reasonable compensation and expenses of seeking and procuring tenants
and entering into leases), established claims for damages, if any, and premiums
on insurance hereinabove authorized; (yy) to the payment of taxes, charges and
special assessments, the costs of all repairs, decorating, renewals,
replacements, alterations, additions, betterments and improvements of the
Mortgaged Property, including the cost from time to time of installing,
replacing or repairing the Mortgaged Property as reasonably necessary for its
use or sale, and of placing the Mortgaged Property in such condition as will,
in the judgment of the Mortgagee, make it readily rentable; and (zz) to the
payment of any Indebtedness.  The
entering upon and taking possession of the Mortgaged Property, or any part
thereof, and the collection of any rents and the application thereof as
aforesaid shall not cure or waive any default theretofore or thereafter
occurring or affect any notice or default hereunder or invalidate any act done
pursuant to any such default or notice, and, notwithstanding continuance in
possession of the Mortgaged Property or any part thereof by the Mortgagee or a
receiver and the collection, receipt and application of the rents, the
Mortgagee shall be entitled to exercise every right provided for in this
Mortgage or by law or in equity upon or after the occurrence of an Event of
Default which is continuing.  Any of the
actions referred to in this Section may be taken by the Mortgagee without
regard to the adequacy of the security for the Indebtedness.


 


8. Remedies Not
Exclusive.  The Mortgagee
shall be entitled to enforce payment of the indebtedness and performance of the
Indebtedness 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 Indebtedness may now or hereafter
be otherwise secured, whether by deed of trust, deed to secure debt, mortgage,
security agreement, pledge, lien, assignment or otherwise.  Neither the acceptance of this Mortgage nor
its enforcement, shall prejudice or in any manner affect the Mortgagee’s right
to realize upon or enforce any other security now or hereafter held by the
Mortgagee, it being agreed that the Mortgagee shall be entitled to enforce this
Mortgage and any other security now or hereafter held by the Mortgagee in such
order and manner as the Mortgagee may determine in its absolute discretion.  No remedy herein conferred upon or reserved
to the 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 the Mortgagee or to which they
may otherwise be entitled, may be exercised, concurrently or independently,
from time to time and as often as may be deemed expedient by the
Mortgagee.  In no event shall the
Mortgagee, in the exercise of the remedies provided in this Mortgage
(including, without limitation, in connection with the assignment of Rents to
the 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 the Mortgagee shall not in 


 


8

















 


any way be made liable for any act, either of
commission or omission, in connection with the exercise of such remedies.


 


9. Performance by the
Mortgagee of the Mortgagor’s Indebtedness.  If the Mortgagor fails to perform or comply
with any of its agreements contained herein the Mortgagee, at its option, but
without any obligation so to do, during the continuance of an Event of Default
may perform or comply, or otherwise cause performance or compliance, with such
agreement.  The reasonable expenses of
the Mortgagee incurred in connection with actions undertaken as provided in
this Section, together with interest thereon at a rate per annum equal to the
rate payable under the Notes after the occurrence of an Event of Default (the “Default
Rate”), from the date of payment by the Mortgagee, as applicable, to the
date reimbursed by the Mortgagor, shall be payable by the Mortgagor to the
Mortgagee on demand.


 


10. Duty of the Mortgagee.  The Mortgagee’s sole duty with respect to the
custody, safekeeping and physical preservation of any Mortgaged Property in its
possession, under the Uniform Commercial Code or otherwise, shall be to deal
with it in the same manner as the Mortgagee deals with similar property for its
own account.  Neither the Mortgagee nor
any of their respective directors, officers, employees or agents shall be liable
for failure to demand, collect or realize upon any of the Mortgaged Property or
for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Mortgaged Property upon the request of the Mortgagor or any
other Person or to take any other action whatsoever with regard to the
Mortgaged Property or any part thereof.


 


11. Powers Coupled with
an Interest.  All powers,
authorizations and agencies contained in this Mortgage are coupled with an
interest and are irrevocable until the earlier of the date (a) this
Mortgage is terminated and the lien created hereby is released and (b) the
Indebtedness has been repaid in full and the Mortgagee has no further
obligation to make any advances , or extend any credit hereunder or under any
Loan Documents.


 


12. Filing of Financing
Statements.  The Mortgagor
authorizes the Mortgagee to file financing statements with respect to the
Mortgaged Property without the signature of the Mortgagor in such form and in
such filing offices as the Mortgagee reasonably determines appropriate to
perfect the security interests of the Mortgagee under this Mortgage.  A carbon, photographic or other reproduction
of this Mortgage shall be sufficient as a financing statement for filing in any
jurisdiction.


 


13. 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 of the State in
which the Mortgaged Property is located (the “Uniform
Commercial Code”).  If an
Event of Default shall occur, then in addition to having any other right or
remedy available at law or in equity, the Mortgagee shall have the option of
either (i) proceeding under the Uniform Commercial Code and exercising
such rights and remedies as may be provided to a secured party by the Uniform
Commercial 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 the Mortgagee’s rights, powers and
remedies with respect to the real 


 


9

















 


property (in which event the default provisions of the
Uniform Commercial Code shall not apply). 
If the Mortgagee, shall elect to proceed under the Uniform Commercial
Code, then fifteen 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 the Mortgagee shall
include, but not be limited to, attorneys’ fees and legal expenses.  At the Mortgagee’s request, the Mortgagor
shall assemble the personal property and make it available to the Mortgagee at
a place designated by the Mortgagee which is reasonably convenient to both
parties.


 


(b) The Mortgagor and the Mortgagee agree, to the
extent permitted by law, that 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 the Uniform
Commercial Code.


 


14. Amendments in Writing;
No Waiver; Cumulative Remedies.  (a) None of the
terms or provisions of this Mortgage may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by the Mortgagor and
the Mortgagee in accordance with the terms of the Loan Agreement.


 


(b) No failure to exercise, nor any delay in
exercising, on the part of the Mortgagee, any right, power or privilege
hereunder shall operate as a waiver thereof. 
No single or partial exercise of any right, power or privilege hereunder
shall preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.  A
waiver by the Mortgagee of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Mortgagee
would otherwise have on any future occasion.


 


(c) The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.


 


15. Successors and
Assigns.  This Mortgage shall
run with the land and be binding upon the successors and assigns of the
Mortgagor and shall inure to the benefit of the Mortgagee, the Lenders and
their respective successors and assigns.


 


16. Mortgagor’s Waiver of
Rights. THE MORTGAGOR ACKNOWLEDGES THAT THE TRANSACTION OF WHICH
THIS MORTGAGE IS A PART IS A TRANSACTION WHICH DOES NOT INCLUDE EITHER
AGRICULTURAL REAL ESTATE (AS DEFINED IN THE ILLINOIS MORTGAGE FORECLOSURE LAW,
735 ILCS 5/15-1101 ET  SEQ., HEREIN THE “ACT”), OR RESIDENTIAL REAL
ESTATE (AS DEFINED IN THE ACT) EXCEPT AS OTHERWISE SET FORTH HEREIN, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE 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.  


 


10

















 


EXCEPT AS OTHERWISE SET FORTH HEREIN, TO THE FULL
EXTENT THE MORTGAGOR MAY DO SO, THE MORTGAGOR AGREES THAT THE MORTGAGOR
WILL NOT AT ANY TIME INSIST UPON, PLEAD, CLAIM OR TAKE THE BENEFIT OR ADVANTAGE
OF ANY LAW NOW OR HEREAFTER IN FORCE PROVIDING FOR ANY APPRAISEMENT, VALUATION,
STAY, EXEMPTION, EXTENSION, REINSTATEMENT OR REDEMPTION, OR REQUIRING FORECLOSURE
OF THIS MORTGAGE BEFORE EXERCISING ANY OTHER REMEDY GRANTED HEREUNDER AND THE
MORTGAGOR, FOR THE 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 REINSTATEMENT,
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.


 


17. Partial Release; Full
Release.  The Mortgagee may
release, for such consideration or none, as it may require, any portion of the
Mortgaged Property without, as to the remainder of the Mortgaged Property, in
any way impairing or affecting the lien, security interest and priority herein
provided for the Mortgagee compared to any other lien holder or secured party.
Upon full payment of all the Indebtedness in accordance with its respective
terms and at the time and in the manner provided, and when the Mortgagee has no
further obligation to make any advance, or extend any credit hereunder or under
any Loan Documents, this conveyance shall be null and void, and thereafter,
upon demand therefor, an appropriate instrument of reconveyance or release
shall promptly be made by the Mortgagee to the Mortgagor, at the expense of the
Mortgagor.


 


18. Notices.  Each notice, demand or other communication in
connection with this Mortgage shall be in writing and shall be given as
provided in the Loan Agreement for notices required by the Loan Agreement.


 


19. Successors; The
Mortgagor; Gender.  All
provisions hereof shall bind the Mortgagor and the Mortgagee and their
respective permitted successors, vendees and assigns and shall inure to the
benefit of the Mortgagee, its permitted successors and assigns, and the
Mortgagor and its permitted successors and assigns.  The Mortgagor shall not have any right to
assign any of its rights hereunder. 
Except as limited by the preceding sentence, the word “Mortgagor” shall
include all Persons claiming under or through the Mortgagor and all Persons
liable for the payment or performance by the Mortgagor of any of the
Indebtedness whether or not such Persons shall have executed the Loan Agreement
or this Mortgage.  Wherever used, the
singular number shall include the plural, the plural the singular, and the use
of any gender shall be applicable to all genders.


 


20. Care by
the Mortgagee.  The Mortgagee shall
be deemed to have exercised reasonable care in the custody and preservation of
any of the Mortgaged Property assigned by the Mortgagor to the Mortgagee or in
the Mortgagee’s possession if it takes such action for that purpose as the
Mortgagor requests in writing, but failure of the Mortgagee to comply with any
such request shall not be deemed to be (or to be evidence of) a failure to
exercise reasonable care, and no failure of the Mortgagee to preserve or
protect any rights with respect to such 


 


11

















 


Mortgaged Property against prior parties, or to do any
act with respect to the preservation of such Mortgaged Property not so
requested by the Mortgagor, shall be deemed a failure to exercise reasonable
care in the custody or preservation of such Mortgaged Property.


 


21. No
Obligation on Mortgagee.  This
Mortgage is intended only as security for the Indebtedness.  Anything herein to the contrary
notwithstanding (i) the Mortgagor shall be and remain liable under and
with respect to the Mortgaged Property to perform all of the obligations
assumed by it under or with respect to each thereof, (ii) the Mortgagee
shall have no obligation or liability under or with respect to the Mortgaged
Property by reason or arising out of this Mortgage prior to a foreclosure or
other sale of the Mortgaged Property pursuant to the terms hereof and (iii) the
Mortgagee shall not be required or obligated in any manner to perform or
fulfill any of the obligations of the Mortgagor under, pursuant to or with
respect to any of the Mortgaged Property prior to a foreclosure or other sale
of the Mortgaged Property pursuant to the terms hereof.


 


22.
Governing Law, Submission to Jurisdiction.  This Mortgage shall be governed by the laws
of the state where the Land are located. 
Whenever possible, each provision of this Mortgage shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Mortgage shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Mortgage.


 


23.
JURY TRIAL.  THE MORTGAGOR AND
MORTGAGEE HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS MORTGAGE, THE LOAN AGREEMENT, THE NOTES OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY


 


24.
No Merger.  It being the desire
and intention of the parties hereto that this Mortgage and the lien hereof do
not merge in fee simple title to the Land, it is hereby understood and agreed
that should the Mortgagee acquire an additional or other interests in or to the
Land or the ownership thereof, then, unless a contrary intent is manifested by the
Mortgagee as evidenced by an express statement to that effect in an appropriate
document duly recorded, this Mortgage and the lien hereof shall not merge in
the fee simple title, toward the end that this Mortgage may be foreclosed as if
owned by a stranger to the fee simple title.


 


25. Future Advances; Revolving Credit.  This Mortgage is given to secure not only
existing indebtedness, but also future advances made pursuant to or as provided
in the Loan Agreement and the other Loan Documents, whether such advances are
obligatory or to be made at the option of the Mortgagee, or otherwise, to the
same extent as if such future advances were made on the date of execution of
this Mortgage, although there may be no advance made at the time of execution
hereof, and although there may be no indebtedness outstanding at the time any
advance is made.  To the fullest extent
permitted by law, the lien of this Mortgage shall be valid as to all such
indebtedness, including all revolving credit and future advances, from the time
this Mortgage is recorded.


 


12

















 


26. Compliance with
Illinois Mortgage Foreclosure Law.  (a) If any
provision of this Mortgage is inconsistent with any applicable provision of the
Act, the provisions of the Act shall take precedence over the provisions of
this Mortgage, but shall not invalidate or render unenforceable any other
provision of this Mortgage that can fairly be construed in a manner consistent
with the Act.


 


(b) Without in any way limiting or restricting
any of Mortgagee’s rights, remedies, powers and authorities under this
Mortgage, and in addition to all of such rights, remedies, powers, and
authorities, Mortgagee shall also have and may exercise any and all rights,
remedies, powers and authorities which the holder of a mortgage is permitted to
have or exercise under the provisions of the Act, as the same may be amended
from time to time.  If any provision of
this Mortgage grants to Mortgagee any rights, remedies, powers or authorities
upon default of Mortgagor which are more limited than the rights that would
otherwise be vested in Mortgagee under the Act in the absence of said
provision, Mortgagee shall be vested with all of the rights, remedies, powers
and authorities granted in the Act to the fullest extent permitted by law.


 


(c) Without limiting the generality of the
foregoing, all expenses incurred by Mortgagee, to the extent reimbursable under
735 ILCS 5/15-1510, 735 ILCS 5/15-1512, or any other provisions of the Act,
whether incurred before or after any decree or judgment of foreclosure, and
whether or not enumerated in any other provision of this Mortgage, shall be
added to the indebtedness secured by this Mortgage and by the judgment of
foreclosure.


 


13

















 


IN WITNESS WHEREOF, the undersigned has caused this Mortgage to be duly
executed and delivered as of the date first above written.


 


	
   

  	
  BRAD FOOTE GEAR WORKS,
  INC.,

  
	
   

  	
  an Illinois Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ralph Placzek

  
	
   

  	
  Name: Ralph Placzek

  
	
   

  	
  Title: Vice President –
  Finance and Treasurer

  



 


N-1

















 


Exhibit A


 


Legal Description
of the Land


 


THE SOUTH 185 FEET OF THE NORTH 333 FEET
(EXCEPT THE EAST 33 FEET AND EXCEPT THE WEST 440 FEET) OF THE SOUTHWEST 1/4 OF
THE NORTHWEST 1/4 OF THE NORTHWEST 1/4 OF SECTION 22, TOWNSHIP 39 NORTH,
RANGE 13 EAST OF THE THIRD PRINCIPAL MERIDIAN.


 


ALSO:


 


THE EAST 33 FEET OF THE SOUTH 300 FEET OF THE
NORTH 333 FEET (EXCEPT THE SOUTH 15 FEET AND THE NORTH 115 FEET THEREOF) OF THE
SOUTHWEST 1/4 OF THE NORTHWEST 1/4 OF THE NORTHWEST 1/4 OF SECTION 22,
TOWNSHIP 39 NORTH, RANGE 13 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK
COUNTY, ILLINOIS.


 


P.I.N. 16-22-104-009-0000


 


ADDRESS: 1310 S. 47th Avenue, Cicero,
Illinois