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OPEN-END MORTGAGE
Maximum Principal Amount $8,500,000.00
THIS OPEN-END MORTGAGE ("Mortgage") made as of the 5th day of
November, 1998 by DURAMED PHARMACEUTICALS, INC., a Delaware corporation, with a
mailing address of 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxx 00000 (hereinafter
referred to as "Mortgagor,") to XXXXXX-XXXXXXX COMPANY, a Delaware corporation,
a banking corporation with a mailing address of 000 Xxxxx Xxxx, Xxxxxx Xxxxxx,
Xxx Xxxxxx 00000 (hereinafter, together with its successors and assigns called
"Mortgagee").
WHEREAS, Xxxxxxxxx and Mortgagee have entered into a certain
Reimbursement Agreement pursuant to which Xxxxxxxxx has agreed to reimburse
certain payments made by Mortgagee under a certain Unconditional Guaranty (the
"Guaranty") of even date herewith executed by Mortgagee in favor of Xxxxxxx
Xxxxx Business Financial Services, Inc., a Delaware corporation ("Xxxxxxx
Xxxxx") as more particularly provided in the Reimbursement Agreement.
WHEREAS, Mortgagee is requiring the execution of this Mortgage in favor
of Mortgagee as a condition to it entering the Reimbursement Agreement in order
to secure the obligation of Mortgagor to Mortgagee under the Reimbursement
Agreement;
ARTICLE 1
The Grant
NOW THEREFORE, in consideration of the entering of the Reimbursement
Agreement and the execution of the Guaranty, Xxxxxxxxx does hereby agree that
the Mortgage shall secure the following: (a) the payment when due of all amounts
due from Mortgagor to Mortgagee under the Reimbursement Agreement, with interest
thereon as provided therein, (b) the payment, performance and observance by
Mortgagor of all of the covenants and conditions contained in the Reimbursement
Agreement, this Mortgage, (c) the performance of all of the obligations of
Mortgagor as landlord under that certain Lease with X-X dated as of September
24, 1997; and (d) the performance of all of the obligations of Mortgagor under
that certain Manufacturing Agreement dated as of September 24, 1997, (items (a),
(b), (c) and (d) shall hereinafter collectively be referred to as the
"Indebtedness Hereby Secured"), and in order to charge the properties, interests
and rights hereinafter described with such payment, performance and observance,
and for other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Xxxxxxxxx does hereby mortgage, warrant, grant, bargain,
sell, assign, encumber, convey and grant a security interest to Mortgagee
forever in all of the estate, title, and interest of Xxxxxxxxx in the fee
simple, leasehold and easement
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estates in that certain real property situated in the County of Xxxxxxxx and
State of Ohio and more particularly described on Exhibit "A" attached hereto and
by reference made a part hereof ("Real Property");
TOGETHER WITH all and singular the tenements, hereditaments, and
appurtenances thereto belonging, all present and future buildings, structures,
annexations, access rights-of way or use, servitudes, licenses, and improvements
thereon, all of the rights, privileges, licenses, easements and appurtenances
belonging to such Real Property, together with all of the estates and rights in
and to lands lying in streets, alleys and roads adjoining the said Real Property
(collectively the "Improvements") and all Mortgagor's right, title, interest,
estate, claim and demand, either at law or in equity, in and to all fixtures,
including, without limiting the generality of the foregoing, all lighting,
heating, cooling, ventilating, air conditioning, incinerating, sprinkling, gas,
plumbing, waste removal and refrigeration systems, engines, furnaces, boilers,
pumps, tanks, heaters, generators, motors, fire prevention apparatus and all
pipes, wires, fixtures, and apparatus forming a part of or used in connection
therewith; elevators and motors, refrigeration plants or units, storm windows
and doors, window and door screens, awnings and window and door shades, all
drapes and curtains and related hardware and mounting devices, wall-to-wall
carpeting; fixtures situated on the Real Property and used or usable in
operation thereof as well as all additions, improvements and replacements
thereto, and proceeds thereof; all water, sanitary and storm sewer systems
including all water mains, service laterals and mineral rights, hydrants, valves
and appurtenances, all sanitary sewer lines, including mains, laterals, manholes
and appurtenances, all paving for streets, roads, walkways or entrance ways, all
minerals, soil, flowers, shrubs, crops, trees, timber and other emblements now
or hereafter on the Real Property or under or above the same or any part or
parcel thereof, all proceeds, or sums payable in lieu of or as compensation for
the loss or damage to Improvements or to the Real Property upon which the said
property covered hereby is or may be located including without limitation the
buildings or improvements now or hereafter located thereon, and all rights in
and to all pertinent present and future fire, hazard, business interruption,
rental interruption and other insurance policies maintained by Mortgagor on the
Improvements and Real Property, all payment and performance bonds received in
connection with any construction or other matter and all rights thereunder, all
plans, specifications, drawings, studies, surveys, appraisals and other similar
work product, all contracts for design, architectural, engineering or
construction services and all rights and claims thereunder; all other contract
rights and agreements for the protection of property or services to or in
connection with, or otherwise benefiting the Real Property, including without'
limitation all management agreements and cable television agreements; all
permits, licenses, variances,
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approvals and/or consents issued by any governmental entity, utility or other
entity; all awards made by any public body or created by any competent
jurisdiction for the taking or the degradation of value in any eminent domain
proceedings, or purchase in lieu thereof; all of Mortgagor's interest and rights
as lessor or lessee in and to all leases now or hereafter affecting the said
Real Property or part thereof; all contracts for the sale of all or any portion
of said Real Property; the Real Property, Improvements and fixtures are
hereinafter referred to as the "Premises".
Mortgagee is hereby subrogated to the rights of all mortgagees, lien
holders and owners paid off by the proceeds of the Loan secured hereby.
TO HAVE AND TO HOLD, the Premises unto the Mortgagee, its successors
and assigns forever for the uses and purposes hereinafter set forth.
ARTICLE 2
Representations and Warranties
2.1 Title. Xxxxxxxxx does hereby represent and warrant to Mortgagee
that it is lawfully seized of the Premises in fee simple and has full power to
convey the same and to execute this Mortgage; that the Premises are free, clear
and unencumbered of all easements, restrictions, and liens whatsoever, except
those easements, restrictions and liens set forth in the title evidence issued
to Mortgagee in connection herewith, if any ("Permitted Encumbrances"); that
Xxxxxxxxx does warrant and will defend the title to the Premises against the
claims and demands of all persons whomsoever except for the Permitted
Encumbrances; that Mortgagor will keep and observe all of the terms of this
Mortgage on Mortgagor's part to be performed; and that Xxxxxxxxx will make any
further assurances of title that Mortgagee may reasonably require.
2.2 Mechanics Lien Matters. Xxxxxxxxx represents and warrants that no
Notice of Commencement (as identified in Ohio Revised Code Section 1311.04) as
to the Premises has been filed or will be filed prior to the filing for record
of this Mortgage and that Mortgagor shall promptly provide Mortgagee with a copy
of all Notices of Furnishing (as identified in Ohio Revised Code Section
1311.05) received by Xxxxxxxxx.
ARTICLE 3
Covenants
Xxxxxxxxx further covenants and agrees with Mortgagee as follows:
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3.1 Payments. To pay to Mortgagee, when due, all amounts payable by
Mortgagor to Mortgagee with interest thereon in accordance with the terms of the
Reimbursement Agreement and to pay all other Indebtedness Hereby Secured at the
times and in the manner herein and therein provided.
3.2 Taxes and other Impositions. To pay, when due according to law, all
taxes, assessments and other charges which are now due or may hereafter be
imposed or assessed upon the Premises, or any part thereof, or that may be
imposed or assessed against the holder of this Mortgage (except when contested
in good faith and when appropriate reserves are established) and the Note by
reason of ownership thereof, by any authority, be it federal, state, county or
city, including but not limited to charges imposed upon the Premises under any
applicable declaration of condominium. Upon the failure of Mortgagor promptly to
pay such taxes, assessments and other charges, Mortgagee shall have the option
to pay and discharge the same after written notice to Mortgagor, and any sum so
expended by Mortgagee shall at once become indebtedness owing from Mortgagor to
Mortgagee, shall be immediately due and payable by Mortgagor with interest
thereon to the extent legally enforceable at the Default Rate of Interest
provided in the Reimbursement Agreement in the event of default and shall
together be added to the Indebtedness Hereby Secured. Upon the request of
Mortgagee, Xxxxxxxxx will promptly provide Mortgagee with evidence of payment of
the above taxes, assessments and other charges imposed or assessed upon the
Premises.
3.3 Insurance. For the term of this Mortgage, to obtain and keep in
full force and effect at the sole cost and expense of Mortgagor or cause to be
obtained and kept policies of insurance to: (a) maintain comprehensive general
public liability insurance covering the legal liability of Mortgagor against
claims for bodily injury, and/or property damage arising out of the use,
maintenance and/or operation of the Premises and all areas appurtenant thereto
and/or the conduct of Mortgagor's business in such amounts as Mortgagee may
reasonably require but in no event less than $1,000,000 for personal injury or
death to one person, $1,000,000 for personal injury or deaths in one accident
and $1,000,000 for property damage; (b) maintain "Broad form/special perils"
insurance on any and all Improvements and Personal Property located on the
Premises against loss by fire or other hazards in an amount not less than the
full insurable value of the Improvements located on the Premises as Mortgagee
may reasonably require, but in no event less than $8,500,000; (c) in the event
any area of the Premises is located within a hundred year flood plain or area
designated as subject to flood by the Federal Emergency Management Agency or
other government agency, or when required by any federal, state or local law,
statute, regulation or ordinance, maintain flood insurance in an amount
Mortgagee reasonably deems appropriate; (d) satisfy all applicable workers'
compensation insurance requirements; (e)
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maintain business interruption insurance and/or loss of "rental value" insurance
in such amounts, and with such coverages, as may be reasonably satisfactory to
Mortgagee, such insurance to be provided at such time as Mortgagee may specify
but in no event later than the commencement of occupancy by any tenant; (f)
during the course of any construction or repair of the Improvements on the
Premises, maintain builder's completed value risk insurance against "all risks
of physical loss," including collapse and transit coverage, in nonreporting
form, covering the total value of work performed and equipment, supplies and
materials furnished; (g) obtain and maintain any other insurance concerning the
Premises or operation of business thereon as Mortgagee may reasonably require,
including, but not limited to, any applicable condominium insurance or PUD
insurance.
All such policies of insurance shall be written by a company or
companies reasonably acceptable to Mortgagee; shall have attached thereto the
standard form of mortgagee clause; shall name Mortgagee and assigns as a named
insured, loss payee and as Mortgagee, without contribution; shall be delivered
to and held by Mortgagee or assigns; shall provide for thirty (30) days prior
written notice of cancellation or non-renewal to Mortgagee; shall have attached
thereto an agreed amount endorsement; shall include a provision stating that the
waiver of subrogation rights of the insured does not void the coverage; shall
contain endorsements that no act or negligence of the insured or any occupant
and no occupancy or use of the Premises for purposes more hazardous than
permitted by the terms of the policy, nor any breach of any warranty,
declaration or condition by the insured, will affect the validity or
enforceability of such insurance as against Mortgagee; shall contain the
agreement of the insurer waiving all rights of set off, counterclaim or
deductions against Mortgagor.
Mortgagor shall furnish or shall cause to be furnished to Mortgagee an
original policy of all required policies of insurance along with proof of
premiums paid for the current policy year and each subsequent year for the term
of this Mortgage. This Mortgage shall operate as an assignment to Mortgagee of
said policies of insurance, whether delivered or not. At the option of the
Mortgagee, if insurance proceeds are not paid within ninety (90) days of the
casualty or if Mortgagor cannot reinstate its business operations within a
reasonable period of time after the occurrence of a casualty, or if there is a
default, the proceeds of loss under any policy of insurance, whether endorsed
payable to the Mortgagee or not, may be applied in payment of amounts due under
the Reimbursement Agreement or any other sum secured by this Mortgage, whether
or not such sums are then due, or to the restoration or replacement of any
buildings on the Premises without in any way affecting the lien of this Mortgage
or the obligation of the Mortgagor or any other person for payment of the
Indebtedness Hereby Secured.
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If the Premises are sold following foreclosure or if Mortgagee acquires
title to the Premises, Mortgagee shall have all the right, title and interest of
the Mortgagor in and to any insurance policies: and unearned premiums thereon
and in and to the proceeds resulting from any damage to the Premises prior to
such sale or acquisition.
Upon the failure of Mortgagor to provide or cause to be provided the
aforesaid insurance, Mortgagee shall have the option to procure and maintain
such insurance without notice to Mortgagor. Any sum so expended by Mortgagee
shall at once become indebtedness owing from Mortgagor to Mortgagee and shall
immediately become due and payable by Mortgagor with interest thereon to the
extent legally enforceable, at the rate of interest provided in the Note in the
event of a default, and shall together be added to the Indebtedness Hereby
Secured.
3.4 Condition of Property; Compliance with Law; Waste. To keep the
Premises in good condition and repair and to make all structural and
nonstructural repairs and maintenance necessary and to cause all repairs and
maintenance to be done in a material good and workmanlike manner; to comply in
all material respects with all statutes, laws, ordinances and governmental
rules, regulations and orders which are applicable to the Premises; (except for
items having a value of less than Ten Thousand and 00/100 Dollars ($10,000.00))
not to commit or permit waste on the Premises or remove or permit the removal of
any building, improvement, or fixture from the Premises without prior written
consent of the Mortgagee or unless replaced with an item of greater or equal
value; and not to perform or permit any act which may in any way materially
impair the value of the Premises.
3.5 No Further Encumbrances; No Disposition. Not to make, create, or
suffer to be made or created any sale, transfer, conveyance, assignment or
further encumbrance of the Premises, or any part thereof, or any interest
therein or any contract or agreement to do any of the same without Mortgagee's
prior written consent, which consent may be withheld in Mortgagee's sole and
absolute discretion. A sale, transfer, conveyance or assignment means the
conveyance by the Mortgagor of any legal or equitable right, title or interest
in the Premises, or any part thereof, whether such conveyance is voluntary or
involuntary, by outright sale, deed, installment sale contract, land contract,
lease option contract, or any other method of transferring any interest in real
property, except for the lease from Mortgagor to Mortgagee and a license back
from Mortgagee to Mortgagor. Any encumbrance means a lien, mortgage or any other
encumbrance subordinate to Mortgagee's Mortgage. Further, in the event of
default under any of the provisions of this Section 3.6, Mortgagee may, without
notice to Xxxxxxxxx, deal with such successor or successors in interest with
reference to this Mortgage and the Note and in the same manner as with the
Mortgagor and may forbear to sue or may extend time for payment
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of the Note without discharging or in anyway affecting the liability of the
Mortgagor hereunder or under the Reimbursement Agreement.
3.6 Condemnation. To promptly notify Mortgagee of any action or
proceeding relating to any condemnation or other taking, whether direct or
indirect of the Premises, or part thereof, and Mortgagor shall appear in and
prosecute any such action or proceedings unless otherwise directed by Xxxxxxxxx
in writing. Mortgagor authorizes Mortgagee at Mortgagee's option, as attorney in
fact for Xxxxxxxxx, (which authorization shall be irrevocable) to commence,
appear in and prosecute, in Mortgagee's or Mortgagor's name, any action or
proceeding relating to any condemnation or other taking of the Premises, whether
direct or indirect and to settle or compromise any claim in connection with such
condemnation or other taking. The proceeds of any award, payment or claim for
damages, direct or consequential, in connection with any condemnation or other
taking, whether direct or indirect, of the Premises or any part thereof, or for
conveyance in lieu of condemnation, are hereby assigned to and shall be paid to
Mortgagee; and all condemnation money so received shall be forthwith applied by
Mortgagee in payment of any sum secured by this Mortgage whether or not such
sums are then due, or to the restoration or replacement of any part of the
Premises without in any way affecting the lien of this Mortgage or the
obligation of the Mortgagor or any other person for payment of Indebtedness
Hereby Secured; provided however that any excess over the balance due under the
Note and any other indebtedness secured by this Mortgage shall be delivered to
Mortgagor.
3.7 Books and Records; Financial Information. With respect to the
Premises and the operation thereof, Xxxxxxxxx will keep or cause to be kept
proper books of record in accordance with generally accepted accounting
principals consistently applied. Mortgagee shall have the right to inspect the
books and records of the operation of the Premises and make copies thereof at
all reasonable times and upon reasonable notice to Mortgagor. Mortgagor shall
furnish to Mortgagee within ninety (90) days after the end of each fiscal year
of Mortgagor, a statement of income and surplus of Mortgagor for such fiscal
year, in reasonable detail and stating in comparative form the figures as of the
end of the previous fiscal year, including statements of income and expense
relating to operations of the Premises, and at the request of Mortgagee,
certified as to the correctness by a certified public accountant. In addition,
Xxxxxxxxx will furnish to Mortgagee such interim financial statements and copies
of federal income tax returns as Mortgagee may reasonably request, certified by
Mortgagor in such form as may be reasonably acceptable to Mortgagee.
3.8 Liability For All Loan Administration and Enforcement Expenses.
Mortgagor shall pay all sums, including costs and
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reasonable attorney fees for Mortgagee's outside counsel at such counsel's
standard hourly rates for time actually incurred in connection with the
enforcement of the Reimbursement Agreement, including title examination and
title insurance premiums and expenses, appraisal fees, survey fees, inspection
fees incurred by Mortgagee to establish or preserve the lien of this Mortgage or
its priority, or in connection with any suit to enforce this Mortgage to recover
the Indebtedness Hereby Secured, or to protect the security. of this Mortgage.
All such sums shall be immediately due and payable, shall bear interest at the
highest rate of interest provided in the Note in the event of default, and
shall, together with such interest, be added to the Indebtedness Hereby Secured.
3.9 Application of Funds. Unless applicable law provides otherwise, all
payments received by Mortgagee from Mortgagor under the Note or this Mortgage
shall be applied by Mortgagee in the following order of priority:
(a) Amounts advanced by Mortgagee in accordance with the terms of
this Mortgage, together with interest thereon;
(b) Interest payable under the Reimbursement Agreement;
(c) Principal payable under the Reimbursement Agreement; and
(e) All other Indebtedness Hereby Secured.
3.10 Environmental Conditions. Mortgagor represents and warrants to
Mortgagee (a) that, except as disclosed in environmental reports now or
previously provided to Mortgagee, Mortgagor has no knowledge or information
which would put a reasonable person on notice or cause such person to make
inquiry concerning the likelihood or presence of any hazardous waste condition
or any factor contributing to a risk to the environment located on or emanating
from the Premises; (b) that no environmental enforcement action(s) against or
concerning the Premises are pending or threatened and Mortgagor will notify
Mortgagee if any such action is commenced; (c) that Mortgagor will maintain and
operate the Premises during the term of the Mortgage in material compliance with
all applicable environmental laws of the state where the Premises are located
and of the United States of America; (d) that Mortgagor will remedy any
contamination that may be discovered on the Premises and which is required by
law to be remedied; and (e) the Mortgagor will indemnify and hold Mortgagee
harmless from and against all losses or damages arising from hazardous waste
conditions or risks to the environment which will result in claims against or
liability of Mortgagee as holder of this Mortgage or subsequent owner of the
Premises that are not covered by Mortgagee or its agents or
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employees or independent contractors retained by or on behalf of Mortgagee.
ARTICLE 4
Events of Default
Each of the following shall be deemed to be an "Event of Default":
4.1 Default in the payment of principal, interest or any other amounts
due under the Reimbursement Agreement within five (5) days of when due;
4.2 Default in the payment of any other Indebtedness Hereby Secured
within five (5) days of when due;
4.3 The failure to obtain and keep in force at all times all insurance
on the Premises and contents thereof and other insurance coverages in accordance
with the terms of this Mortgage and such failure is not fully cured within ten
(10) days after Mortgagee has given written notice thereof to Mortgagor;
4.4 An encumbrance on or sale of the Premises, or any part thereof, in
violation of Section 3.6 herein;
4.5 The filing of any lien unless contested in good faith and with
appropriate reserves established or charge against the Premises or any part
thereof which is not removed or bonded to the satisfaction of Mortgagee within a
period of thirty (30) days thereafter;
4.6 The failure to observe or perform any one or more of the other
terms, covenants or other obligations on the part of Mortgagor set forth in the
Reimbursement Agreement or this Mortgage, and such default is not fully cured
within thirty (30) days after Mortgagee has given written notice thereof to
Mortgagor; provided, however, that if such default is curable, and if and so
long as Mortgagor is proceeding with due diligence to cure the default, such
period will be extended to whatever reasonable period is required to permit the
Mortgagor to cure the default; provided that such additional curing period does
not, in Mortgagee's sole opinion, jeopardize its vital interest in the Premises;
4.7 The abandonment by Xxxxxxxxx of all or a part of the Premises;
4.8 In the case where Mortgagor is a corporation, partnership or trust
entity, the dissolution or cessation of existence as a legal entity of
Mortgagor;
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4.9 Any certification, representation or warranty of Mortgagor under
this Mortgage or the Reimbursement Agreement or any other information provided
to Mortgagee by Xxxxxxxxx or his representatives in connection with the Premises
is determined to have been untrue and/or misleading in any material effect when
made;
4.10 Upon the filing of any bankruptcy proceeding by Xxxxxxxxx or upon
the filing of any bankruptcy proceeding against Mortgagor which is not dismissed
within sixty (60) days; any assignment by the Mortgagor of any of its property
for the benefit of creditors, or the placing of any of Xxxxxxxxx's property in
receivership, trusteeship or conservatorship with or without action or suit in
any court;
4.11 The death of any individual, or dissolution of any corporate
partnership or limited liability company, borrower, comaker or guarantor;
4.12 The insolvency or bankruptcy of a guarantor;
4.13 The occurrence of any Event of Default under the Reimbursement
Agreement.
ARTICLES
Remedies
5.1 Mortgagee's Remedies. Upon the occurrence of an Event of Default,
Mortgagee shall have the right to exercise all rights and remedies provided by
law or in equity to which Mortgagee is entitled, including without limitation,
(a) the right to proceed to protect and enforce its rights by any action at law,
in equity or other appropriate proceeding, whether for the specific performance
of any agreement contained herein or for an injunction against a violation of
any of the terms, conditions, or provisions hereof or in the aid of the exercise
of any power granted hereby or by law; (b) the right to declare all amounts due
under the Reimbursement Agreement and all interest thereon, or, at its option,
any part of the foregoing, to be immediately due and payable without further
demand or notice; (c) the right to, at any time or from time to time, proceed at
law or in equity or otherwise to foreclose the lien on this Mortgage as against
all or any part of the Premises; (d) upon the filing of a suit or other
commencement of judicial proceeding to enforce the rights of the Mortgagee under
this Mortgage, Mortgagee shall be entitled, as a matter of right, to the
appointment of a receiver or receivers of the Premises and to receive all
receipts therefrom pending such proceedings, with such power as the court making
such appointment shall confer; and (e) the right to demand that Mortgagor
surrenders the possession of the Premises subject to the rights of any lessee,
to take possession of all or any part of the Premises together with all books,
papers and accounts
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of Mortgagor pertaining thereto and to operate and manage the same and from time
to time to make all needful repairs and improvements as Mortgagee may deem
reasonable; and to lease the Premises or any part thereof in the name of and for
the account of the Mortgagor and to collect and receive and sequester the rents,
revenues and other income after deducting all proper costs and expenses of so
taking, holding and managing the same including reasonable compensation to
Mortgagee.
5.2 Rights and Remedies Cumulative; No Waiver or Release of Obligation.
The rights and remedies of the Mortgagee as provided in this Mortgage and in the
Reimbursement Agreement, and in the warranties contained herein and therein
shall be cumulative and concurrent, may be pursued separately, successively or
together against Mortgagor or against the Premises, or both, in the sole
discretion of Mortgagee, and may be exercised as often as occasion therefor
shall arise.
Any failure by Mortgagee to insist upon strict performance by Xxxxxxxxx
of any of the terms and provisions of this Mortgage or of the Reimbursement
Agreement shall not be deemed a waiver of any of the terms or provisions of this
Mortgage or the Reimbursement Agreement. No delay or omission to exercise any
right or power accruing upon any Event of Default shall impair any right or
power or shall be construed to be a waiver of any such Event of Default or
acquiescence therein; every such right and power may be exercised from time to
time and as often as may be deemed expedient. No waiver of any default or Event
of Default hereunder by the Mortgagee shall extend to or shall affect any
subsequent Event of Default or shall impair any rights or remedies consequent
thereon.
Mortgagee may release, regardless of consideration, any part of the
security held for the indebtedness secured by this Mortgage without, as to the
reminder of the security, in any way impairing or affecting the lien of this
Mortgage or its priority over any subordinate lien.
5.3 Expenses. Upon an Event of Default hereunder, Xxxxxxxxx shall pay
to Mortgagee such further amount as shall be sufficient to reimburse it fully
for all costs and expenses of collection of the Note and the enforcement of any
security for the Reimbursement Agreement including without limitation,
Mortgagee's fees and expenses for enforcing this Mortgage or any rights
hereunder, reasonable attorneys', accountants' and appraisers' fees and
expenses, court costs and any taxes and fees or governmental charges incident to
such enforcement of rights and collection.
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ARTICLE 6
Miscellaneous
6.1 Binding Effect. All of the terms, covenants and conditions of this
Mortgage shall bind Mortgagor and its respective heirs, devisees,
administrators, executors, successors and assigns and shall inure to the benefit
of and be available to Mortgagee, and its successors and assigns.
6.2 Interpretation; Time of the Essence. All references to Mortgagor
and Mortgagee shall be read in the singular or plural and in the masculine,
feminine, or neuter gender, as the sentence may require. Time is of the essence
with respect to each and every obligation of Mortgagor under the Reimbursement
Agreement and the Mortgage.
6.3 Governing Law. This Mortgage shall be governed by the laws of the
State of Ohio. In the event that any provision of this Mortgage conflicts with
applicable law, such conflict shall not affect other provisions of this Mortgage
or the Reimbursement Agreement which can be given affect without the conflicting
provisions, and to this end the provisions of this Mortgage are declared to be
severable.
6.4 Covenants Run With Land. All of the covenants of this Mortgage
shall run with the land constituting the Premises.
6.5 Headings. The headings to the articles and sections hereof are for
reference only and do not limit in any way the content thereof.
6.6 Additional Assurances. Xxxxxxxxx hereby agrees to promptly execute
and deliver such further instruments and assurances and will do such further
acts as Mortgagee may reasonably request to perfect the security interest of
Mortgagee in all or any portion of the Premises and/or to more effectively carry
out the purposes of the Note, Mortgage and/or other Loan Documents.
6.7 Open-End Mortgage. In accordance with the provisions of Ohio
Revised Code Sections 5301.232 and 5301.233, this Mortgage is given to, and the
parties intend that it shall secure indebtedness in a maximum principal amount
of Eight Million Five Hundred Thousand and 00/100 Dollars ($8,500,000.00)
evidenced by the Reimbursement Agreement, which indebtedness may include
advances made by Mortgagee, after this Mortgage is filed of record. The making
of such advances is obligatory on the part of Mortgagee subject to the terms and
conditions provided for in the Reimbursement Agreement and Mortgage. The maximum
principal amount of the unpaid balance of such indebtedness, in the aggregate
and exclusive of interest thereon, which is or will be outstanding at any time,
is that set forth above, provided that
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this Mortgage shall also secure unpaid balances of advances made for the payment
of taxes, assessments, insurance premiums, or costs incurred for the protection
of the Premises.
6.8 Ohio Revised Code Section 1311.14. Mortgagor covenants and agree
with Mortgagee that Mortgagee may, at its option, do all things provided to be
done by a Mortgagee under Section 1311.14 of the Ohio Revised Code, and any
amendments or supplements thereto, for the protection of Mortgagee's interest in
the Premises.
6.9 Obligations Unconditional. The obligations of the Mortgagor to make
payments of any and all amounts due hereunder shall be absolute and
unconditional without defense or set-off by reason of any default whatsoever,
including, without limitation a default by any tenant of the Premises under any
lease with the Mortgagor or under any other agreement or instrument between the
Mortgagee and the Mortgagor, and such payments to Mortgagee shall not be
decreased, abated, postponed or delayed for any reason whatsoever, including
without limitation, any acts or circumstances that may constitute failure of
consideration, destruction of or damage to the Premises, the taking of any part
of the Premises, commercial frustration of purpose, failure of any person to
perform or observe any agreement, whether expressed or implied, or any duty,
liability or obligation arising out of or connected with this Mortgage, the
Reimbursement Agreement, or any other Loan Document, or failure of any resident
or occupant of the Premises to pay the fees, rentals or other charges owed to
Xxxxxxxxx, and irrespective of whether or not any such resident or occupant of
the Premises receives either partial or total reimbursement as a credit against
such payment, it being the intention of the parties that the payments required
of the Mortgagor hereunder will be paid in full when due without any delay or
diminution whatsoever.
6.10 Waiver of Jury Trial. In consideration for the execution of the
Guaranty by Mortgagee, Xxxxxxxxx hereby expressly waives the right to trial by
jury in any lawsuit or proceeding related to this Mortgage or arising in any way
from the Indebtedness Hereby Secured or the transactions between Mortgagor and
Mortgagee.
NOW, THEREFORE, if Xxxxxxxxx shall well and truly pay and discharge the
Indebtedness Hereby Secured as the same shall become due and payable and shall
perform and observe all of the terms, covenants and conditions to be performed
and observed by Xxxxxxxxx hereunder then this conveyance shall be null and void
and shall be released by Mortgagee at the expense of Mortgagor; otherwise this
Mortgage is to remain in full force and effect.
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IN WITNESS WHEREOF, Xxxxxxxxx has executed this Mortgage as of the year
and date first above written.
WITNESSES: Mortgagor:
/s/ Xxxxx X. Xxxxxxx
----------------------------- DURAMED PHARMACEUTICALS, INC.,
Printed: Xxxxx X. Xxxxxxx a Delaware corporation
---------------------
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Printed: Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxx
--------------------- -----------------------------------
Name: Xxxxxxx X. Xxxx
---------------------------------
Its: Senior Vice President - Finance
----------------------------------
STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me this 5th day of
November, 1998 by Xxxxxxx X. Xxxx as Senior Vice President - Finance of DURAMED
PHARMACEUTICALS, INC., a Delaware corporation, on behalf of the corporation.
/s/ Xxxx X. Xxxxx
--------------------------------------
Notary Public
This instrument was prepared by:
Xxxxxxx X. Xxxxxxxx, Xx.
Xxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
1800 Star Bank Center
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
(000) 000-0000
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Exhibit "A"
LEGAL DESCRIPTION
FOR
CONSOLIDATION
14.790 Acre Parcel
Being a parcel of land situated in Columbia Township, City of
Cincinnati, Xxxxxxxx County, Ohio, Section 28 and Section 29, Town 4, Fractional
Range 2, and being part of the property as conveyed in Official Record Book
6330, Page 419 of the deed records of the Recorders Office of Xxxxxxxx County,
Ohio, and being located within the following described points and the boundary
thereof:
Commencing at the northwest corner of the northeast quarter of Section
28; thence along the north-south half section line of said Section 28, South
05(Degree)30'46" West, 115.50 feet to the east line of Xxxxxx Road, said point
being the Real Point of Beginning of the parcel herein described; thence with
the east line of said Xxxxxx Road on the following courses: (1) North
12(Degree)35'24" West, 64.85 feet; (2) on a curve deflecting to the left and
having a radius of 392.00 feet, an arc length of 68.20 feet, and a chord bearing
North 14(Degree)38'48" West, 68.11 feet to the south right-of-way line of the N
& W Railroad; thence with said south line on the following courses: (1) North
35(Degree)34'43" East, 48.18 feet; (2) on a curve deflecting to the right and
having a radius of 1,833.46 feet; an arc length of 1366.45 feet, and a chord
bearing North 88(Degree)40'07" East, 1,335.04 feet; (3) South 69(Degree)41'23"
East, 188.00 feet; (4) South 20(Degree)18'37: West, 15.00 feet; (5) South
69(Degree)38'07" East, 40.14 feet to the northwesterly Limited Access line of
Interstate 71; thence with said northwesterly line on the following courses: (1)
South 47(Degree)22'53" West, 101.58 feet; (2) South 17(Degree)30'03" West, 68.97
feet; (3) on a curve deflecting to the right and having a radius of 1,839.86
feet, an arc length of 315.10 feet, and a chord bearing South 69(Degree)37'01"
West, 314.72 feet; (4) South 82(Degree)22'48" West, 83.23 feet; (5) North
5(Degree)44'46" East, 42.43 feet; (6) South 76(Degree)47'12" West, 251.19 feet;
(7) South 72(Degree)35'28" West, 56.36 feet; (8) North 71(Degree)06'11" West,
53.62 feet; (9) South 51(Degree)46'24" West, 89.33 feet; (10) South
80(Degree)56'32" West, 159.04 feet; (11) South 85(Degree)44'06" West,
78(Degree)17'53" West, 57.31 feet; (14) North 88(Degree)30'50" West, 62.00 feet;
(15) North 65(Degree)43'31: West, 129.08 feet; (16) North 83(Degree)05'13" West,
47.44 feet to the east line of Xxxxxx Road; thence with said east line on the
following courses: (1) North 01(Degree)10'46" East, 142.95 feet; (2) North
12(Degree)35'24" West, 58.62 feet to the Real Point of Beginning containing
14.790 acres more or less.
The above description is the result of a survey prepared by Xxxx X.
Xxxxxx of Xxxxxx, Xxxxxx & Associates, Inc., Ohio Registered Surveyor No. 6260
dated June 7, 1994.
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Exhibit "A" Continued
DESCRIPTION
FOR
CONSOLIDATION
2.302 Acre Parcel
Being a parcel of land situated in Columbia Township, City of
Cincinnati, Xxxxxxxx County, Ohio, Section 28, Town 4, Fractional Range 2 and
being part of the property as conveyed in Official Record Book 6330, Page 419
and all of the property as conveyed in Registered Land Certificate No. 159327 of
the deed records of the Recorders Office and Registered Land Office of Xxxxxxxx
County, Ohio, and being located within the following described points and the
boundary thereof:
Commencing at the northwest corner of the northeast quarter of Section
28; thence on the north-south half section line of said Section 28; South
05(Degree)30'46" West, 313.05 feet to the northwesterly limited access line of
Interstate 71; thence with said northwesterly line North 84(Degree)24'32"
West,21.18 feet to the Real Point of Beginning of the parcel herein described;
thence continuing with the said northwesterly line on the following courses: (1)
North 84(Degree)24'32" West, 61.17 feet; (2) South 78(Degree)08'00" West, 343.29
feet; (3) South 86(Degree)56'55" West, 127.85 feet; (4) South 48(Degree)47'12"
West, 18.99 feet; (5) North 41(Degree)14'07" West, 20.54 feet to the south
right-of-way line of the N & W Railroad; thence with said south line on a curve
deflecting to the right and having a radius of 1,833.46 feet, an arc length of
629.03 feet, and a chord bearing North 53(Degree)46'30" East, 625.95 feet to the
west right-of-way line of Xxxxxx Road; thence with said west line on the
following courses: (1) on a curve deflecting to the right and having a radius of
332.00 feet, an arch length of 32.36 feet, and a chord bearing South
41(Degree)17'58" East, 32.35 feet, (2) on a curve deflecting the right and
having a radius of 675.00 feet, an arc length of 89.71 feet, and a chord bearing
South 14(Degree)12'08" East, 89.64 feet; (3) South 38(Degree)47'14" East, 12.36
feet; (4) South 01(Degree)10'46" West, 72.10 feet; (5) on a curve deflecting to
the right and having a radius at 30.00 feet, an arc length of 8.88 feet, and a
chord bearing South 60(Degree)39'41" West, 8.85 feet; (6) on a curve deflecting
to the left and having a radius of 50.00 feet, an arc length of 125.97 feet and
a chord bearing South 03(Degree)24'52" East, 95.20 feet; (7) South
01(Degree)10'46" West, 9.11 feet to the Real Point of Beginning containing 2.302
acres more or less.
Included in the above described parcel is Registered Land Certificate
of Title No. 87180, described as follows:
Commencing at the northwest corner of the northeast quarter of Section
28; thence along the north-south half section line of said Section 28; South
05(Degree)30'46" West, 168.63 feet; thence leaving said north-south line North
38(Degree)47'14" West, 62.23 feet to
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the west line of Xxxxxx Road, said point being the Real Point of Beginning of
the parcel herein described; thence leaving said west line North
38(Degree)47'14" West, 90.04 feet; thence on a curve deflecting to the right and
having a radius of 1830.08 feet, an arc length of 38.26 feet, and a chord
bearing North 64(Degree)05'11" East, 38.26 feet to the west line of Xxxxxx Road;
thence with said west line on a curve deflecting to the right having a radius of
675.00 feet, an arc length of 89.71 feet, and a chord bearing South
14(Degree)12'08" East, 89.64 feet to the Real Point of Beginning containing
.0407 acres more or less.
The above description is the result of a survey prepared by Xxxx X.
Xxxxxx of Xxxxxx, Xxxxxx & Associates, Inc., Ohio Registered Surveyor No. 6260
dated June 7, 1994.
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