EXHIBIT 10.17
[OH]
OPEN-END MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING
by
IRONTON IRON INC
Mortgagor
for the benefit of
DEUTSCHE BANK TRUST COMPANY AMERICAS
Mortgagee
as of November 19, 2004
Property address:
0000 X. 0xx Xx.
Xxxxxxx, XX
The maximum principal amount of loan indebtedness, exclusive of interest, that
may not be outstanding at any time shall not exceed $60,000,000.
TABLE OF CONTENTS
PAGE
1. DEFINITIONS............................................................... 1
2. GRANT..................................................................... 2
3. WARRANTIES, REPRESENTATIONS AND COVENANTS................................. 3
3.1 Title to Mortgaged Property and Lien of this Instrument............. 3
3.2 First Lien Status................................................... 3
3.3 Payment and Performance............................................. 3
3.4 Replacement of Fixtures and Personalty.............................. 3
3.5 Prohibited Liens; Prohibited Transfers.............................. 3
3.6 Other Covenants..................................................... 3
3.7 Condemnation Awards and Insurance Proceeds.......................... 4
4. DEFAULT AND FORECLOSURE................................................... 4
4.1 Remedies............................................................ 4
4.2 Separate Sales...................................................... 5
4.3 Remedies Cumulative, Concurrent and Nonexclusive.................... 5
4.4 Release of and Resort to Collateral................................. 5
4.5 Waiver of Redemption, Notice and Marshalling of Assets.............. 5
4.6 Discontinuance of Proceedings....................................... 6
4.7 Application of Proceeds............................................. 6
4.8 Occupancy After Foreclosure......................................... 6
4.9 Additional Advances and Disbursements; Costs of Enforcement......... 6
4.10 No Mortgagee in Possession.......................................... 6
5. ASSIGNMENT OF RENTS AND LEASES............................................ 7
5.1 Assignment.......................................................... 7
5.2 No Obligation....................................................... 7
5.3 Right to Apply Rents................................................ 7
5.4 No Merger of Estates................................................ 7
6. SECURITY AGREEMENT........................................................ 8
6.1 Security Interest................................................... 8
6.2 Fixture Filing...................................................... 8
7. MISCELLANEOUS............................................................. 8
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TABLE OF CONTENTS
(continued)
PAGE
7.1 Notices................................................................... 8
7.2 Covenants Running with the Land........................................... 8
7.3 Attorney-in-Fact.......................................................... 9
7.4 Successors and Assigns.................................................... 9
7.5 Credit Agreement.......................................................... 9
7.6 Release................................................................... 9
7.7 Waiver of Stay, Moratorium and Similar Rights............................. 9
7.8 Governing Law............................................................. 10
7.9 Headings.................................................................. 10
7.10 Entire Agreement.......................................................... 10
7.11 Future Advances........................................................... 10
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TABLE OF CONTENTS
(continued)
EXHIBIT A: Legal Description
INDEX OF DEFINED TERMS
PAGE
Credit Agreement......................................................... 1
Fixtures................................................................. 1
Improvements............................................................. 1
Indebtedness............................................................. 1
Land..................................................................... 1
Leases................................................................... 2
Lender................................................................... 1
Lenders.................................................................. 1
Loan Documents........................................................... 1
Mortgage................................................................. 1
Mortgaged Property....................................................... 1
Mortgagee................................................................ 1
Mortgagor................................................................ 1
Obligations.............................................................. 2
Permitted Encumbrances................................................... 2
Personalty............................................................... 2
Plans.................................................................... 2
Property Agreements...................................................... 2
Rents.................................................................... 2
UCC...................................................................... 2
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OPEN-END MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING
This Open-End Mortgage, Security Agreement and Fixture Filing (this "Mortgage")
is executed as of November 19, 2004, by IRONTON IRON INC , an Ohio corporation
("Mortgagor"), having an office at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxx,
Xxxxxxxx 00000, for the benefit of DEUTSCHE BANK TRUST COMPANY AMERICAS
("Mortgage"), having an office at 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000.
1. DEFINITIONS
As used herein, the following terms shall have the following meanings:
"Indebtedness": The sum of all (1) principal, interest and other amounts due
under or secured by the Loan Documents, (2) principal, interest and other
amounts that may hereafter be loaned by the Lenders, their successors or
assigns, to or for the benefit of the owner of the Mortgaged Property, when
evidenced by a promissory note or other instrument that, by its terms, is
secured hereby, and (3) all other indebtedness, obligations and liabilities now
or hereafter existing of any kind of Mortgagor to the Lenders under documents
that recite that they are intended to be secured by this Mortgage.
"Lender" or "Lenders": All entities so designated pursuant to the terms of the
Credit Agreement.
"Loan Documents": (1) The Debtor-In-Possession Credit Agreement dated as of
October 22, 2004 among Internet Corporation, certain Subsidiaries of Intermet
Corporation (including Mortgagor, each a "Borrower" and collectively,
"Borrowers"), as Borrowers, each of the financial institutions named therein,
Mortgagee, as collateral agent and The Bank of Nova Scotia, as administrative
agent (the "Credit Agreement"); (2) Notes (as defined in the Credit Agreement),
each executed by Borrowers, payable to the order of one or more Lenders; (3) the
Collateral Documents, including without limitation this Mortgage, and Loan
Documents (each as defined in the Credit Agreement); (4) all other documents now
or hereafter executed by Mortgagor or any other person or entity to evidence or
secure the payment of the Indebtedness or the performance of the Obligations;
and (5) all modifications, restatements, extensions, renewals and replacements
of the foregoing.
"Mortgaged Property": (1) the real property described in Exhibit A, together
with any greater estate therein as hereafter may be acquired by Mortgagor (the
"Land"), (2) all buildings, structures and other improvements, now or at any
time situated, placed or constructed upon the Land (the "Improvements"), (3) all
materials, supplies, equipment, apparatus and other items of personal property
now owned or hereafter acquired by Mortgagor and now or hereafter attached to,
installed in or used in connection with any of the Improvements or the Land, and
water, gas, electrical, storm and sanitary sewer facilities and all other
utilities whether or not situated in easements (the "Fixtures"), (4) all right,
title and interest of Mortgagor in and to all goods, accounts, general
intangibles, instruments, documents, chattel paper and all other personal
property of any kind or character, including such items of personal property as
defined in the UCC, now owned or hereafter acquired by Mortgagor and now or
hereafter affixed to, placed upon, used in connection with, arising from or
otherwise related to the Land and Improvements
(the "Personalty"), (5) all reserves, escrows or impounds required under the
Credit Agreement and all deposit accounts maintained by Mortgagor with respect
to the Mortgaged Property, (6) all plans, specifications, shop drawings and
other technical descriptions prepared for construction, repair or alteration of
the Improvements, and all amendments and modifications thereof (the "Plans"),
(7) all leases, subleases, licenses, concessions, occupancy agreements or other
agreements (written or oral, now or at any time in effect) which grant a
possessory interest in, or the right to use, all or any part of the Mortgaged
Property, together with all related security and other deposits (the "Leases"),
(8) all of the rents, revenues, income, proceeds, profits, security and other
types of deposits, and other benefits paid or payable by parties to the Leases
other than Mortgagor for using, leasing, licensing, possessing, operating from,
residing in, selling or otherwise enjoying the Mortgaged Property (the "Rents"),
(9) all other agreements, such as construction contracts, architects'
agreements, engineers' contracts, utility contracts, maintenance agreements,
management agreements, service contracts, permits, licenses, certificates and
entitlements in any way relating to the development, construction, use,
occupancy, operation, maintenance, enjoyment, acquisition or ownership of the
Mortgaged Property (the "Property Agreements"), (10) all rights, privileges,
tenements, hereditaments, rights-of-way, easements, appendages and appurtenances
appertaining to the foregoing, and all right, title and interest, if any, of
Mortgagor in and to any streets, ways, alleys, strips or gores of land adjoining
the Land or any part thereof, (11) all accessions, replacements and
substitutions for any of the foregoing and all proceeds thereof, (12) all
insurance policies, unearned premiums therefor and proceeds from such policies
covering any of the above property now or hereafter acquired by Mortgagor, (13)
all mineral, water, oil and gas rights now or hereafter acquired and relating to
all or any part of the Mortgaged Property, and (14) all of Mortgagor's right,
title and interest in and to any awards, remunerations, reimbursements,
settlements or compensation heretofore made or hereafter to be made by any
governmental authority pertaining to the Land, Improvements, Fixtures or
Personalty. The term "Mortgaged Property" shall mean all or, where the context
permits or requires, any portion of the above or any interest therein.
"Obligations": All of the agreements, covenants, conditions, warranties,
representations and other obligations (other than to repay the Indebtedness)
made or undertaken by Mortgagor or any other person or entity to the Lenders,
Mortgagee or others as set forth in the Loan Documents.
"Permitted Encumbrances": Those Liens permitted under the Credit Agreement.
"UCC": The Uniform Commercial Code of the state in which the Land is located or,
if the creation, perfection and enforcement of any security interest herein
granted is governed by the laws of any other state, then, as to the matter in
question, the Uniform Commercial Code in effect in that state.
In addition, all capitalized terms used in this Mortgage but not defined herein
shall have the meanings given to them in the Credit Agreement.
2. GRANT
To secure the full and timely payment of the Indebtedness and the full and
timely performance of the Obligations, Mortgagor MORTGAGES, GRANTS, BARGAINS,
SELLS and CONVEYS, to
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Mortgagee the Mortgaged Property, subject, however, to Permitted Encumbrances,
TO HAVE AND TO HOLD the Mortgaged Property to Mortgagee and Mortgagor does
hereby bind itself, its successors and assigns to WARRANT AND FOREVER DEFEND the
title to the Mortgaged Property unto Mortgagee.
3. WARRANTIES, REPRESENTATIONS AND COVENANTS
Mortgagor warrants, represents and covenants to Mortgagee as follows:
3.1 Title to Mortgaged Property and Lien of this Instrument. Mortgagor owns the
Mortgaged Property free and clear of any liens, claims or interests, except
Permitted Encumbrances and the other Liens permitted under the Credit Agreement.
This Mortgage creates valid, enforceable first priority liens and security
interests against the Mortgaged Property.
3.2 First Lien Status. Mortgagor shall preserve and protect the first lien and
security interest status of this Mortgage. If any lien or security interest
other than the Permitted Encumbrance and the other Liens permitted under the
Credit Agreement is asserted against the Mortgaged Property, Mortgagor shall
promptly upon obtaining notice thereof, and at its expense, (a) give Mortgagee a
detailed written notice of such lien or security interest (including origin,
amount and other terms), and (b) pay the underlying claim in full or take such
other action so as to cause it to be released or contest the same in compliance
with the requirements of the Credit Agreement.
3.3 Payment and Performance. Mortgagor shall pay the Indebtedness when due under
the Loan Documents and shall perform the Obligations in full when they are
required to be performed, in each case subject to the terms and conditions of
the Credit Agreement.
3.4 Replacement of Fixtures and Personalty. Mortgagor shall not, without the
prior written consent of Mortgagee, not to be unreasonably withheld or delayed,
permit any of the Fixtures or Personalty to be removed at any time from the Land
or Improvements, unless the removed item is removed temporarily for maintenance
and repair or, if removed permanently, is obsolete and is replaced by an article
of equal or better suitability and value (unless Mortgagor, in its reasonable
business judgment, determines that such item is unnecessary), owned by Mortgagor
subject to the liens and security interests of this Mortgage and the other Loan
Documents, and free and clear of any other lien or security interest except
Permitted Encumbrances and the other Liens permitted under the Credit Agreement
and such as may be first approved in writing by Mortgagee, such approval not to
be unreasonably withheld or delayed.
3.5 Prohibited Liens; Prohibited Transfers. Except as otherwise permitted in the
Credit Agreement, Mortgagor shall not create, suffer, or permit to be created or
filed against the Mortgaged Property any Lien superior or inferior to the lien
created by this Mortgage. Except as otherwise provided in the Credit Agreement,
Mortgagor may not sell, lease or convey all or any part of the Mortgaged
Property or any interest therein.
3.6 Other Covenants. All of the covenants in the Credit Agreement are
incorporated herein by reference. The covenants set forth in the Credit
Agreement include, among other provisions:
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(a) limitations on the lease, sale or transfer of any of the Mortgaged Property,
(b) the obligation to pay when due all taxes on the Mortgaged Property, (c) the
obligation to keep the Mortgaged Property insured and (d) the obligation to
comply with all legal requirements with respect to the Mortgaged Property
(including environmental laws), all as more particularly described in the Credit
Agreement.
3.7 Condemnation Awards and Insurance Proceeds. Mortgagor assigns all proceeds
of any insurance policies insuring against loss or damage to the Mortgaged
Property and all awards and compensation for any condemnation or other taking,
or any purchase in lieu thereof, to Mortgagee, subject to the terms of the
Credit Agreement.
Notwithstanding the foregoing, Mortgagee shall make available to Mortgagor
the foregoing awards, compensation and proceeds of condemnation and insurance,
for the purpose of restoration and rebuilding the Mortgaged Property, to the
same extent that Mortgagor or the borrowers would be entitled to retain such
funds under the terms of the Credit Agreement.
4. DEFAULT AND FORECLOSURE
4.1 Remedies. If an Event of Default exists, Mortgagee may, at Mortgagee's
election, exercise any or all of the following rights, remedies and recourses:
4.1.1 Acceleration. Declare the Indebtedness to be immediately due and
payable, without further notice, presentment, protest, notice of intent to
accelerate, notice of acceleration, demand or action of any nature whatsoever
(each of which hereby is expressly waived by Mortgagor), whereupon the same
shall become immediately due and payable.
4.1.2 Entry on Mortgaged Property. Enter the Mortgaged Property and take
exclusive possession thereof and of all books, records and accounts relating
thereto. If Mortgagor remains in possession of the Mortgaged Property after an
Event of Default and without Mortgagee's prior written consent, Mortgagee may
invoke any legal remedies to dispossess Mortgagor.
4.1.3 Operation of Mortgaged Property. Hold, lease, develop, manage,
operate or otherwise use the Mortgaged Property upon such terms and conditions
as Mortgagee may deem reasonable under the circumstances (making such repairs,
alterations, additions and improvements and taking other actions, from time to
time, as Mortgagee deems necessary or desirable), and apply all Rents and other
amounts collected by Mortgagee in connection therewith in accordance with the
provisions of Section 4.7.
4.1.4 Foreclosure and Sale. Institute proceedings for the complete
foreclosure of this Mortgage, in which case the Mortgaged Property may be sold
for cash or credit in one or more parcels. With respect to any notices required
or permitted under the UCC, Mortgagor agrees that five days' prior written
notice shall be deemed commercially reasonable. At any such sale by virtue of
any judicial proceedings or any other legal right, remedy or recourse, the title
to and right of possession of any such property shall pass to the purchaser
thereof, and to the fullest extent permitted by law, Mortgagor shall be
completely and irrevocably divested of all of its right, title, interest, claim
and demand whatsoever, either at law or in equity, in and to the
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property sold and such sale shall be a perpetual bar both at law and in equity
against Mortgagor, and against all other persons claiming or to claim the
property sold or any part thereof, by, through or under Mortgagor. Mortgagee may
be a purchaser at such sale and if Mortgagee is the highest bidder, may credit
the portion of the purchase price that would be distributed to Mortgagee against
the Indebtedness in lieu of paying cash.
4.1.5 Receiver. Make application to a court of competent jurisdiction for,
and obtain from such court as a matter of strict right and without notice to
Mortgagor or regard to the adequacy of the Mortgaged Property for the repayment
of the Indebtedness, the appointment of a receiver of the Mortgaged Property,
and Mortgagor irrevocably consents to such appointment. Any such receiver shall
have all the usual powers and duties of receivers in similar cases, including
the full power to rent, maintain and otherwise operate the Mortgaged Property
upon such terms as may be approved by the court, and shall apply such Rents in
accordance with the provisions of Section 4.7.
4.1.6 Other. Exercise all other rights, remedies and recourses granted
under the Loan Documents or otherwise available at law or in equity (including
an action for specific performance of any covenant with respect to the Mortgaged
Property contained in the Loan Documents, or a judgment on the Notes either
before, during or after any proceeding to enforce this Mortgage).
4.2 Separate Sales. The Mortgaged Property may be sold in one or more parcels
and in such manner and order as Mortgagee in its sole discretion, may elect; the
right of sale arising out of any Event of Default shall not be exhausted by any
one or more sales.
4.3 Remedies Cumulative, Concurrent and Nonexclusive. Mortgagee shall have all
rights, remedies and recourses granted in the Loan Documents and available at
law or equity (including the UCC), which rights (a) shall be cumulative and
concurrent, (b) may be pursued separately, successively or concurrently against
Mortgagor or others obligated under the Notes and the other Loan Documents, or
against the Mortgaged Property, or against any one or more of them, at the sole
discretion of Mortgagee, (c) may be exercised as often as occasion therefor
shall arise, and the exercise or failure to exercise any of them shall not be
construed as a waiver or release thereof or of any other right, remedy or
recourse, and (d) are intended to be, and shall be, nonexclusive. No action by
Mortgagee in the enforcement of any rights, remedies or recourses under the Loan
Documents or otherwise at law or equity shall be deemed to cure any Event of
Default.
4.4 Release of and Resort to Collateral. Mortgagee may release, regardless of
consideration and without the necessity for any notice to a consent by the
holder of any subordinate lien on the Mortgaged Property, any part of the
Mortgaged Property without, as to the remainder, in any way impairing,
affecting, subordinating or releasing the lien or security interests created in
or evidenced by the Loan Documents or their stature as a first and prior lien
and security interest in and to the Mortgaged Property. For payment of the
Indebtedness, Mortgagee may resort to any other security in such order and
manner as Mortgagee may elect.
4.5 Waiver of Redemption, Notice and Marshalling of Assets. To the fullest
extent permitted by law, Mortgagor hereby irrevocably and unconditionally waives
and releases (a) all benefit that
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might accrue to Mortgagor by virtue of any present or future statute of
limitations or law or judicial decision exempting the Mortgaged Property from
attachment, levy or sale on execution or providing for any appraisement,
valuation, stay of execution, exemption from civil process, redemption or
extension of time for payment, and (b) any right to a marshaling of assets or a
sale in inverse order of alienation.
4.6 Discontinuance of Proceedings. If Mortgagee shall have proceeded to invoke
any right, remedy or recourse permitted under the Loan Documents and shall
thereafter elect to discontinue or abandon it for any reason, Mortgagee shall
have the unqualified right to do so and, in such an event, Mortgagor and
Mortgagee shall be restored to their former positions with respect to the
Indebtedness, the Obligations, the Loan Documents, the Mortgaged Property and
otherwise, and the rights, remedies, recourses and powers of Mortgagee shall
continue as if the right, remedy or recourse had never been invoked, but no such
discontinuance or abandonment shall waive any Event of Default which may then
exist or the right of Mortgagee thereafter to exercise any right, remedy or
recourse under the Loan Documents for such Event of Default.
4.7 Application of Proceeds. The proceeds of any sale of, and the Rents and
other amounts generated by the holding, leasing, management, operation or other
use of the Mortgaged Property, shall be applied by Mortgagee (or the receiver,
if one is appointed) in the order contemplated by subsection 2.4A of the Credit
Agreement, unless otherwise required by applicable law.
4.8 Occupancy After Foreclosure. Subject to applicable law, the purchaser at any
foreclosure sale pursuant to Section 4.1.4 shall become the legal owner of the
Mortgaged Property. All occupants of the Mortgaged Property shall, at the option
of such purchaser, become tenants of the purchaser at the foreclosure sale and
shall deliver possession thereof immediately to the purchaser upon demand. It
shall not be necessary for the purchaser at said sale to bring any action for
possession of the Mortgaged Property other than the statutory action of forcible
detainer in any justice court having jurisdiction over the Mortgaged Property.
4.9 Additional Advances and Disbursements; Costs of Enforcement.
4.9.1 If any Event of Default exists, Mortgagee shall have the right, but
not the obligation, to cure such Event of Default in the name and on behalf of
Mortgagor. All sums advanced and expenses incurred at any time by Mortgagee
under this Section 4.9, or otherwise under this Mortgage, shall bear interest
and shall be payable in accordance with the terms of the Credit Agreement, and
all such sums, together with interest thereon, shall be secured by this
Mortgage.
4.9.2 Mortgagor shall pay all expenses (including reasonable attorneys'
fees and expenses) of or incidental to the perfection and enforcement of this
Mortgage or any claim under this Mortgage, and for the curing thereof, or for
defending or asserting the rights and claims of Mortgagee in respect thereof, by
litigation or otherwise, in all cases subject to the terms of the Credit
Agreement.
4.10 No Mortgagee in Possession. Neither the enforcement of any of the remedies
under this Article 4, the assignment of the Rents and Leases under Article 5,
the security interests under
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Article 6, nor any other remedies afforded to Mortgagee under the Loan
Documents, at law or in equity shall cause Mortgagee to be deemed or construed
to be a mortgagee in possession of the Mortgaged Property, to obligate Mortgagee
to lease the Mortgaged Property or attempt to do so, or to take any action,
incur any expense, or perform or discharge any obligation, duty or liability
whatsoever under any of the Leases or otherwise.
5. ASSIGNMENT OF RENTS AND LEASES
5.1 Assignment. Mortgagor hereby assigns to Mortgagee a present, absolute
assignment of the Leases and Rents. While any Event of Default exists, Mortgagee
shall be entitled to (a) notify any person that the Leases have been assigned to
Mortgagee and that all Rents are to be paid directly to Mortgagee, whether or
not Mortgagee has commenced or completed foreclosure or taken possession of the
Mortgaged Property; (b) settle, compromise, release, extend the time of payment
of, and make allowances, adjustments and discounts of any Rents or other
obligations under the Leases; (c) enforce payment of Rents and other rights
under the Leases, prosecute any action or proceeding, and defend against any
claim with respect to Rents and Leases; (d) lease all or any part of the
Mortgaged Property; and/or (e) perform any and all obligations of Mortgagor
under the Leases and exercise any and all rights of Mortgagor therein contained
to the full extent of Mortgagor's rights and obligations thereunder, with or
without the bringing of any action or the appointment of a receiver.
5.2 No Obligation. Notwithstanding Mortgagee's rights hereunder, Mortgagee shall
not be obligated to perform, and Mortgagee does not undertake to perform, any
obligation, duty or liability with respect to the Leases or Rents on account of
this Mortgage. Mortgagee shall have no responsibility on account of this
Mortgage for the control, care, maintenance or repair of the Mortgaged Property,
for any waste committed on the Mortgaged Property, for any dangerous or
defective condition of the Mortgaged Property, or for any negligence in the
management, upkeep, repair or control of the Mortgaged Property other than for
its gross negligence or willful misconduct.
5.3 Right to Apply Rents. Mortgagee shall have the right, but not the
obligation, to use and apply any Rents received hereunder in such order and such
manner as Mortgagee may determine, including, without limitation, for: (a) the
payment of costs and expenses of enforcing or defending the terms of this
Mortgage or the rights of Mortgagee hereunder, and collecting any Rents and (b)
the payment of costs and expenses of the operation and maintenance of the
Mortgaged Property. After the payment of all such costs and expenses and after
Mortgagee has established such reserves as it, in its reasonable discretion,
deems necessary for the proper management of the Mortgaged Property, Mortgagee
shall apply all remaining Rents received by it in the manner contemplated by the
Credit Agreement.
5.4 No Merger of Estates. So long as any part of the Indebtedness and the
Obligations secured hereby remain unpaid and undischarged, the fee and leasehold
estates to the Mortgaged Property shall not merge, but shall remain separate and
distinct, notwithstanding the union of such estates either in Mortgagor,
Mortgagee, any lessee or any third party by purchase or otherwise.
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6. SECURITY AGREEMENT
6.1 Security Interest. This Mortgage constitutes a "Security Agreement" on
personal property within the meaning of the UCC and other applicable law and
with respect to the Personalty, Fixtures, Plans, Leases, Rents and Property
Agreements. To this end, Mortgagor grants to Mortgagee, a first and prior
security interest in the Personalty, Fixtures, Plans, Leases, Rents and Property
Agreements and all other Mortgaged Property which is personal property to secure
the payment of the Indebtedness and performance of the Obligations, and agrees
that Mortgagee shall have all the rights and remedies of a secured party under
the UCC with respect to such property. Any notice of sale, disposition or other
intended action by Mortgagee with respect to the Personalty, Fixtures, Plans,
Leases, Rents and Property Agreement sent to Mortgagor at least five days prior
to any action under the UCC shall constitute reasonable notice to Mortgagor. In
the event of any conflict between this Mortgage and the Security Agreement in
connection with the treatment of such property, the Security Agreement shall
control.
6.2 Fixture Filing. This Mortgage shall also constitute a "fixture filing" for
the purposes of the UCC against all of the Mortgaged Property which is or is to
become fixtures. Information concerning the security interest herein granted may
be obtained at the addresses of Debtor (Mortgagor) and Secured Party (Mortgagee)
as set forth in the first paragraph of this Mortgage.
7. MISCELLANEOUS
7.1 Notices. Any notice or other communication required shall be in writing
addressed to the respective party as set forth below and may be personally
served, telecopied, sent by overnight courier service or U.S. mail and shall be
deemed to have been given: (a) if delivered in person, when delivered; (b) if
delivered by fax, on the date of transmission if transmitted on a Business Day
before 4:00 p.m. New York time; (c) if delivered by overnight courier, one
Business Day after delivery to the courier properly addressed; or (d) if
delivered by U.S. mail, four Business Days after deposit with postage prepaid
and properly addressed.
Notices shall be addressed as follows:
If to Mortgagor: Ironton Iron Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxx
Fax: 000-000-0000
If to Mortgagee: c/o Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
NYC 60-0219
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Fax: 000-000-0000
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7.2 Covenants Running with the Land. All Obligations contained in this Mortgage
are intended by Mortgagor and Mortgagee to be, and shall be construed as,
covenants running with the Mortgaged Property. As used herein, "Mortgagor" shall
refer to the party named in the first paragraph of this Mortgage and to any
subsequent owner of all or any portion of the Mortgaged Property (without in any
way implying that Mortgagee has or will consent to any such conveyance or
transfer of the Mortgaged Property). All persons or entities who may have or
acquire an interest in the Mortgaged Property shall be deemed to have notice of,
and be bound by, the terms of the Credit Agreement and the other Loan Documents;
however, no such party shall be entitled to any rights thereunder without the
prior written consent of Mortgagee.
7.3 Attorney-in-Fact. Mortgagor hereby irrevocably appoints Mortgagee and its
successors and assigns, as its attorney-in-fact, which agency is coupled with an
interest, (a) to execute and/or record any notices of completion, cessation of
labor or any other notices that Mortgagee deems appropriate to protect
Mortgagee's interest, if Mortgagor shall fail to do so within ten days after
written request by Mortgagee, (b) upon the issuance of a deed pursuant to the
foreclosure of this Mortgage or the delivery of a deed in lieu of foreclosure,
to execute all instruments of assignment, conveyance or further assurance with
respect to the Leases, Rents, Personalty, Fixtures, Plans and Property
Agreements in favor of the grantee of any such deed and as may be necessary or
desirable for such purpose, (c) to prepare, execute and file or record financing
statements, continuation statements, applications for registration and like
papers necessary to create, perfect or preserve Mortgagee's security interests
and rights in or to any of the Mortgaged Property, and (d) while any Event of
Default exists, to perform any obligation of Mortgagor hereunder; however: (1)
Mortgagee shall not under any circumstances be obligated to perform any
obligation of Mortgagor; (2) any sums advanced by Mortgagee in such performance
shall be added to and included in the Indebtedness and shall bear interest at an
interest rate equal to the Base Rate plus the Base Rate Margin plus 2.0% per
annum; (3) Mortgagee as such attorney-in-fact shall only be accountable for such
funds as are actually received by Mortgagee; and (4) Mortgagee shall not be
liable to Mortgagor or any other person or entity for any failure to take any
action which it is empowered to take under this Section.
7.4 Successors and Assigns. This Mortgage shall be binding upon and inure to the
benefit of Mortgagee and Mortgagor and their respective successors and assigns.
Mortgagor shall not, without the prior written consent of Mortgagee, assign any
rights, duties or obligations hereunder.
7.5 Credit Agreement. If any conflict or inconsistency exists between this
Mortgage and the Credit Agreement, the Credit Agreement shall govern.
7.6 Release. Upon payment in full of the Indebtedness and performance in full of
the Obligations, Mortgagee, at Mortgagor's expense, shall release the liens and
security interests created by this Mortgage.
7.7 Waiver of Stay, Moratorium and Similar Rights. Mortgagor agrees, to the full
extent that it may lawfully do so, that it will not at any time insist upon or
plead or in any way take advantage of any appraisement, valuation, stay,
marshalling of assets, extension, redemption or moratorium law now or hereafter
in force and effect so as to prevent or hinder the enforcement
9
of the provisions of this Mortgage or the indebtedness secured hereby, or any
agreement between Mortgagor and Mortgagee or any rights or remedies of
Mortgagee.
7.8 Governing Law. This Mortgage shall be governed by the laws of the State in
which the Land is located.
7.9 Headings. The Article, Section and Subsection titles hereof are inserted for
convenience of reference only and shall in no way alter, modify or define, or be
used in construing, the text of such Articles, Sections or Subsections.
7.10 Entire Agreement. This Mortgage and the other Loan Documents embody the
entire agreement and understanding between Mortgagee and Mortgagor and supersede
all prior agreements and understandings between such parties relating to the
subject matter hereof and thereof. Accordingly, the Loan Documents 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.
7.11 Future Advances. Under the provisions of Section 5301.232 of the Ohio
Revised Code, in addition to any other sum secured hereby, this Mortgage shall
also secure the unpaid principal balance of, plus accrued interest on, any
amount of money loaned, advanced, disbursed or paid by Mortgagee to or for the
account and benefit of Mortgagor after this Mortgage is delivered to and filed
with the Recorder's Office (herein called a "Future Advance").
7.11.1 In addition to any other sum secured hereby, and as contemplated in
Section 5301.233 of the Ohio Revised Code, this Mortgage shall also secure the
unpaid principal balance, plus the accrued interest thereon, of any advance made
or any amount paid by Lender, after this Mortgage is delivered to and filed for
recording with the Recorder's Office, in order to pay any real estate taxes,
assessments, insurance premiums or other costs and expenses incurred by Lender
in connection with the operation, protection or preservation of the Mortgaged
Property or any part thereof or this Mortgage as provided in other provisions of
this Mortgage.
7.11.2 Mortgagor covenants and agrees 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 Mortgaged Property.
10
Form of Acknowledgment
IN WITNESS WHEREOF, Mortgagor has caused this instrument to be executed by its
duly authorized officers as of the day and year first above written.
IRONTON IRON INC.,
an Ohio corporation
By /s/ Xxxx X. Xxxxxx
-------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
STATE OF MICHIGAN )
)SS.
COUNTY OF OAKLAND )
Before me, a notary public, in and for said county, personally appeared Xxxx X.
Xxxxxx, known to me to be the person who, as Vice President of Ironton Iron,
Inc., an Ohio corporation, the corporation which executed the foregoing
instrument, signed the same, and acknowledged to me that he did so sign said
instrument in the name and upon behalf of said corporation as such officer, and
that the same is his free act and deed as such officer, and the free and
corporate act and deed of said corporation, and that he was duly authorized
thereunto by its board of directors. In testimony whereof, I have hereunto
subscribed my name, and affixed my official seal at Troy, MI this 16th day of
November, 2004.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxxx X. Xxxx
-----------------------
Notary Public,
XXXXXX X. XXXX
NOTARY PUBLIC, Oakland County, MI
My Commission Expires 9-8-05
Prepared by and record and return to:
-------------------------------------
O'Melveny & Xxxxx LLP
Times Square Tower
0 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A
Legal Description
TRACT 1- IRONTON IRON COMPANY (PART OF EXHIBIT A, D.B. 516, PG. 299)
Situate in Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 00 Xxxx, Xxxx of Ironton,
Xxxxxxxx County, Ohio and being part of the Dayton Malleable Iron
Company's 4.66 acre tract as recorded in Volume 201, Page 492 of the
Xxxxxxxx County Deed Records and being more particularly bounded and
described as follows:
Beginning at an iron pin (set March, 1986) at the intersection of the
Southerly Right-of-Way Line of Dayton Street and the Easterly Right-of-way
Line of the Norfolk and Western Railroad.
Thence, along said Southerly Right-of-way Line of Xxxxxx Xxxxxx, Xxxxx 00
deg. 51' 34" East a distance of 201.32 feet to an iron pin (set March,
1986) on the Southeast Line of the aforementioned 4.66 acre tract,
Thence, along said Southeast Line, South 57 deg. 45' 26" West, a distance
of 170.11 feet to an iron pin (found March, 1986) on the aforementioned
Easterly Right-of-way Line of the Norfolk and Western Railroad,
Thence, along said right-of-way of the railroad with the arc of a curve to
the right having a radius of 1462.69 feet, delta angle of 6 deg. 10' 53",
tangent length of 78.98 feet, arc length of 157.81 feet, and a long chord
of North 17 deg. 54' 30" West, 157.73 feet to the ORIGINAL PLACE OF
BEGINNING containing 0.304 acres more or less and subject to all legal
easements or rights-of-way.
Being the same premises as described in Exhibit A, Tract 1, Volume 516,
Page 299 of the Xxxxxxxx County Deed Records.
The above described tract consists of the following;
Part of Xxxxxxxx County Auditor's Parcel Number 00-000-0000 (0.304
acres of 3.64 total acres)
TRACT 2 - IRONTON IRON COMPANY (PART OF EXHIBIT A, D.B. 516, PG. 299)
Situate in Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 00 Xxxx, Xxxx of Ironton,
Xxxxxxxx County, Ohio and being all of Lot 4 and 5 in the Second National
Bank Addition to the town of Etna as recorded in Volume 1, Page 254 of the
Xxxxxxxx County Plat Records and being more particularly bounded and
described as follows:
Beginning at a point at the intersection of the Northeasterly Right-of-way
Line of Third Street and Northeasterly Right-of-way Line of Poplar Alley,
Thence, along said right-of-way of Xxxxx Xxxxxx, Xxxxx 00 deg. 59' 10"
West, a distance of 50.08 feet (50 feet by plat) to an iron pin (found
March, 1986),
Thence, North 59 deg. 59' 57" East, a distance of 147.48 feet (145.85 feet
by plat) to a P.K. Nail (found March, 1986) on the Southwesterly
Right-of-way Line of Cedar Alley,
Page 1 of 5
Thence, along said right-of-way of Cedar Alley, South 29 deg. 07' 26"
East, a distance of 50.15 feet (50 feet by plat) to a P.K. Nail (found
March, 1986) at the intersection of said Right-of-way Line of Cedar Alley
and the aforementioned Right-of-way Line of Poplar Alley,
Thence, along said right-of-way of Polar Alley, South 60 deg. 01' 38"
West, a distance of 145.85 feet (144.95 feet by plat) to the ORIGINAL
PLACE OF BEGINNING containing 0.169 acres more or less and subject to all
legal easements or right-of-way.
Being the same premises as described in Exhibit A, Tract 2, Volume 516,
Page 299 of the Xxxxxxxx County Deed Records.
The above described tract consists of the following;
The above described tract consists of the following;
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
TRACT 3 - IRONTON IRON COMPANY (Part of Exhibit A, D.B. 516 Pg. 299)
Situate in Section 27 and Xxxxxxx 00, Xxxxxxxx X Xxxxx, Xxxxx 00 Xxxx,
Xxxx of Ironton, Xxxxxxxx County, Ohio and being the remainder of the
Dayton Malleable Ironton Company's tracts as recorded in Volume 312, Page
615, Volume 201, Page 492; Volume 222, Page 526; Volume 395, Page 594;
Volume 168, Page 486; Volume 222, Page 9; Volume 99, Page 614; Volume 101,
Page 15; Volume 130, Page 141; Volume 269, Page 191; Volume 294, Page 34;
Volume 307, Page 146; and Volume 417, Page 93 of the Xxxxxxxx County Deed
Records and part of the Dayton Malleable Iron Company's tract as recorded
in Volume 323, Page 606 of the Xxxxxxxx County Deed Records and being more
particularly bounded and described as follows:
Beginning at a "X" chisled in concrete (set March, 1986) at the
intersection of the Northwesterly Right-of-way Line of Dayton Street and
the Southwesterly Right-of-way Line of Third Street,
Thence, along said right-of-way of Xxxxxx Xxxxxx, Xxxxx 00 deg. 45' 26"
West, a distance of 455.89 feet to an iron pin (set March, 1986), thence
continuing along said right-of-way, North 72 deg. 51' 34" West, a distance
of 207.16 feet to an iron pin (set March, 1986) on the Easterly
Right-of-way Line of the Norfolk and Western Railroad,
Thence, along said railroad right-of-way, North 13 deg. 45' 19" west,
(North 13 51' West by deed) a distance of 135.26 feet,
Thence, continuing along said railroad right-of-way with the arc of a
curve to the left having a radius of 814.37 feet, delta angle of 5 deg.
12' 00", tangent length of 36.98 feet, arc length 73.91 feet, and a long
chord of North 16 deg. 21' 19" West, 73.89 feet to an iron pin (found
March, 1986),
Thence, continuing along said railroad right-of-way with the arc of a
curve to the left having a radius of 1071.50 feet, delta angle of 10 deg.
59' 19", tangent length of 103.07 feet, arc length of 205.50 feet, and a
long chord of North 24 deg. 26' 59" West, 205.19 feet to an iron pin
(found March, 1986),
Thence, continuing along said railroad right-of-way, North 29 deg. 26' 27"
West, (North 31 deg. 15' West by deed) a distance of 229.69 feet to a
railroad spike (set March, 1986),
Page 2 of 5
Thence, continuing along said railroad right-of-way, South 59 deg. 59' 06"
West, (South 58 deg. 41' West by Deed) a distance of 22.76 feet to an
iron pin (set March, 1986),
Thence, continuing along said railroad right-of-way, North 30 deg. 00' 12"
West, (North 31 deg. 18' 20" West by deed) a distance of 509.46 feet to an
iron pin (set March, 1986),
Thence continuing along said railroad right-of-way, North 28 deg. 17' 52"
West, (North 29 deg. 36' west by deed) a distance of 198.48 feet to a T.
Rail (found March, 1986),
Thence continuing along said railroad right-of-way, North 61 deg. 56' 03"
East, (North 60 deg. 37' 55" East by deed) a distance of 30.91 feet,
Thence, continuing along said railroad right-of-way, North 18 deg. 57' 52"
West, (North 20 deg. 16' West by deed) a distance of 222.92 feet to an
iron pin, (set March, 1986),
Thence, continuing along said railroad right-of-way, North 59 deg. 59' 08"
East, (North 58 deg. 41' East by deed) a distance of 6.10 feet,
Thence, continuing along said railroad right-of-way, North 30 deg. 10' 52"
West, (North 31 deg. 29' West by deed) a distance of 73.05 feet to an iron
pin (set March, 1986).
Thence, continuing along said railroad right-of-way, North 30 deg. 26' 00"
West, (North 30 deg. 34' West by deed) a distance of 64.20 feet to an iron
pin (set March 1986),
Thence, North 59 deg. 45' 49" East, a distance of 162.26 feet to a P.K.
Nail (found March, 1986),
Thence, North 30 deg. 36' 22" west, a distance of 58.03 feet to a Rail
road spike (set March, 1986) on the face of the Southeasterly wall
(extended) of Building Number 57,
Thence, along the face of said wall North 59 deg. 18' 32" East, a distance
of 199.00 feet to the corner of said building,
Thence along the face of the Northeasterly wall of said building North 30
deg. 41' 28" West, a distance of 48.82 feet to the corner of said
building,
Thence, along the face of the Northwesterly wall of said building South 59
deg. 18' 32" West, a distance of 170.39 feet.
Thence, North 32 deg. 18' 47" West, a distance of 47.08 feet to a metal
fence post,
Thence, North 65 deg. 19' 16" West, a distance of 47.64 feet to a P.K.
Nail (found March, 1986),
Thence, North 75 deg, 52' 45" West, a distance of 37.92 feet to a metal
post filled with concrete,
Thence, South 58 deg. 05' 37" West, a distance of 95.90 feet to an iron
pin (found March 1986), on the aforementioned Easterly Right-of-way Line
of the Norfolk and Western Railroad,
Thence, along said railroad right-of-way, North 31 deg. 07' 49" West
(North 30 deg. 39' West by deed), a distance of 496.49 feet to an iron pin
(found March, 1986),
Thence, North 58 deg. 40' 50" East (North 58 deg. 51' East by deed), a
distance of 167.71 feet to an iron pin (set March, 1986),
Page 3 of 5
Thence South 30 deg. 59' 10" East (South 30 deg. 49' East by deed), a
distance of 200.00 feet to an iron pin (set March, 1986),
Thence, North 59 deg. 00' 50" East (North 59 deg. 11' East by deed), a
distance of 10.00 feet to an iron pin (set March, 1986),
Thence, South 30 deg. 59' 10" East (South 30 deg. 49' East by deed), a
distance of 60.00 feet to an iron pin (set March, 1986),
Thence, North 59 deg. 00' 50" East (North 59 deg 11' East by deed), a
distance of 171.72 feet to an "X" chisled in a concrete sidewalk (set
March, 1986) on the aforementioned Southwesterly Right-of-way Line of
Third Street,
Thence, long said right-of-way, South 30 deg. 59' 10" East (South 30 deg.
49' East by deed), a distance of 1008.85 feet to an "X" chisled in a
concrete sidewalk (set March, 1986),
Thence, continuing along said right-of-way, South 32 deg. 38' 38" East
(South 33 deg: 15 East by deed), a distance of 748.32 feet to a railroad
spike (set March, 1986) on the Northwesterly Right-of-way Line of Xxxxxx
Xxxx,
Thence, along said Right-of-way of Xxxxxx Xxxx, Xxxxx 00 deg. 49' 41"
West, a distance of 192.02 feet,
Thence, South 29 deg. 07' 29" East, a distance of 24.06 feet to a point on
the Southeasterly Right-of-way Line of Xxxxxx Xxxx,
Thence, along said right-of-way of Xxxxxx Xxxx, Xxxxx 00 deg. 49' 41"
East, a distance of 193.50 feet to an iron pin (found March, 1986) on the
aforementioned right-of-way of Third Street,
Thence; along said right-of-way of Third Street, South 32 deg. 38' 38"
East (South 33 deg. 15' East by deed), a distance of 333.02 feet to an
iron pin (set March, 1986),
Thence, continuing along said right-of-way, South 32 deg. 15' 32" East
(South 32 deg. 14' 34" East by deed), a distance of 180.11 feet to the
ORIGINAL PLACE OF BEGINNING and passing an iron pin (found March, 1986) at
66.77 feet and a stone (found March, 1986) at 80,04 feet, containing
24.299 acres more or less and subject to all legal easements or
rights-of-way.
Being the same premises as described Exhibit A, Tract 3, Volume 516, Page
299 of the Xxxxxxxx County Deed Records.
The above described tract consists of the following:
Part of Xxxxxxxx County Auditor's Parcel Number 00-000-0000 (0.69 acres of
1.35 total acres)
Part of Xxxxxxxx County Auditor's Parcel Number 00-000-0000 (0.14 acres of
0.28 total acres)
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
Page 4 of 5
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
Part of Xxxxxxxx County Auditor's Parcel Number 00-000-0000 (2.211 acres
of 2.238 total acres)
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
Part of Xxxxxxxx County Auditor's Parcel Number 00-000-0000 (3.336 acres
of 3.64 total acres)
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
All of Xxxxxxxx County Auditor's Parcel Number 00-000-0000
Page 5 of 5
