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EXHIBIT 4.9
This document was prepared by and after recording should be returned to:
Xxxxx X. Xxxxxxxx
Xxxxxx & Xxxxxx
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
REAL ESTATE MORTGAGE, SECURITY
AGREEMENT, FINANCING STATEMENT
AND ASSIGNMENT OF RENTS AND LEASES
THIS REAL ESTATE MORTGAGE, SECURITY AGREEMENT, FINANCING
STATEMENT AND ASSIGNMENT OF RENTS AND LEASES ("Mortgage") entered into as of the
____ day of December, 2000, by METREX RESEARCH CORPORATION, a Wisconsin
corporation f/k/a Metrex Acquisition Company ("Mortgagor") having its principal
office at 00000 Xxxxx Xxxxxxxx Xxx, Xxxxxx, Xxxxxxxx 00000, in favor of ABN AMRO
BANK N.V. ("Mortgagee"), having its principal office at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, as contractual representative for its benefit
and for the benefit of the "Holders of Secured Obligations" as defined in that
certain Credit Agreement (as amended, restated, modified, supplemented or
substituted from time to time, the "Credit Agreement"), dated as of November 28,
2000, by and among Ormco Corporation, a Delaware corporation ("Ormco"), Sybron
Dental Management, Inc., a Delaware corporation ("SDM"), Xxxx Corporation, a
Delaware corporation ("Xxxx"), the Subsidiary Swing Line Borrowers from time to
time parties thereto (together jointly with Ormco, SDM and Xxxx, the
"Borrowers"), Sybron Dental Specialties, Inc., a Delaware corporation, as the
Parent, The Chase Manhattan Bank, as Syndication Agent, First Union National
Bank, as Documentation Agent, Beneficiary and the institutions from time to time
parties thereto as Lenders. The term "Holders of Secured Obligations" shall
include those who are, and those who may hereafter become, parties to the Credit
Agreement in such capacity. Except as otherwise provided herein, all capitalized
terms used but not defined herein shall have the respective meanings given to
them in the Credit Agreement.
WITNESSETH:
WHEREAS, pursuant to and upon satisfaction of the conditions
set forth in the Credit Agreement, the Mortgagee and Lenders have agreed to make
certain Term Loans and Revolving Loans to the Borrowers, and Mortgagee and
Lenders have agreed to extend certain other financial accommodations from time
to time to Borrowers, all in an aggregate principal amount not to exceed Four
Hundred Fifty Million and no/100 Dollars ($450,000,000.00); and
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WHEREAS, Mortgagor is a Subsidiary of one of the Borrowers and
will derive direct and indirect economic benefit from the Loans and financial
accommodations, and Mortgagor has executed and delivered to Mortgagee for the
benefit of the Lenders and the Holders of the Secured Obligations, a certain
Subsidiary Guaranty, dated as of even date herewith (as amended from time to
time, the "Guaranty"), pursuant to which Mortgagor has guaranteed the payment
and performance of the Obligations described in the Credit Agreement; and
WHEREAS, as a condition to Mortgagee and Lenders' extension of
such financial accommodations to the Borrowers including, without limitation,
the extension of Credit pursuant to the Credit Agreement, Mortgagee and Lenders
have required that Mortgagor enter into this Mortgage and grant to Mortgagee for
the benefit of the Lenders and the Holders of the Secured Obligations, the liens
and security interests referred to herein to secure (i) prompt and complete
payment and performance of all of Mortgagor's obligations under the Guaranty;
(ii) the payment of the principal amount of the Loans, together with interest
thereon; (iii) payment of all Reimbursement Obligations; (iv) payment of the
principal amount, together with interest thereon, of all present and future
advances of money made by Mortgagee or Lenders to Borrowers, or any of them,
including, without limitation, the reborrowing of principal previously repaid
pursuant to the Credit Agreement, as well as all other Secured Obligations of
Borrowers, or any of them, to Mortgagee or Holders of Secured Obligations; and
(v) other payment and performance obligations under this Mortgage (the aforesaid
Secured Obligations of Borrowers, or any of them, to Mortgagee or Lenders, plus
interest and other payment and performance obligations of the Mortgagor being
hereinafter referred to collectively as the "Liabilities");
WHEREAS, the Liabilities secured hereby shall not exceed an
aggregate principal amount, at any one time outstanding of Five Hundred Million
and no/100 Dollars ($500,000,000.00), provided, that the foregoing limitation
shall apply only to the lien upon the real property created by this Mortgage,
and it shall not in any manner limit, affect or impair any grant of a security
interest or other right in favor of the Mortgagee under the provisions of the
Credit Agreement or under any other security agreement at any time executed by
Mortgagor;
NOW, THEREFORE, in consideration of the premises contained
herein and to secure payment of the Liabilities and in consideration of One
Dollar ($1.00) in hand paid, the receipt and sufficiency whereof are hereby
acknowledged, Mortgagor does hereby grant, remise, release, alien, convey,
mortgage and warrant to Mortgagee, its successors and assigns, the following
described real estate (the "Land") in Xxxxxxx County, Colorado, and does further
grant a security interest to Mortgagee in all Mortgaged Property (as defined
below) as may be secured under the Uniform Commercial Code (the "Code") in
effect in the State of Colorado (the "State"):
See Exhibit A attached hereto and by this reference made a
part hereof for the legal description of the Land
which Land, together with all right, title and interest, if any, which Mortgagor
may now have or hereafter acquire in and to all improvements, buildings and
structures now or hereafter located thereon of every nature whatsoever, is
herein called the "Premises".
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TOGETHER WITH all right, title and interest, if any, including
any after-acquired right, title and interest, and including any right of use or
occupancy, which Mortgagor may now have or hereafter acquire in and to (a) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and
public places adjoining said Land, and any other interests in property
constituting appurtenances to the Premises, or which hereafter shall in any way
belong, relate or be appurtenant thereto, (b) all hereditaments, gas, oil,
minerals, and easements, of every nature whatsoever, located in or on the
Premises and all other rights and privileges thereunto belonging or
appertaining, (c) all water, ditch, well and reservoir rights which are
appurtenant to or which have been used in connection with the Land, (d) all
development rights associated with the Land, whether previously or subsequently
transferred to the Land from other real property or now or hereafter susceptible
of transfer from such Land to other real property, (e) any land lying between
the boundaries of the Land and the center line of any adjacent street, road,
avenue or alley, whether opened or proposed, (f) all other or greater rights and
interests of every nature in the Mortgaged Property and in the possession or use
thereof and income therefrom, whether now owned or hereafter acquired by
Mortgagor and (g) all extensions, additions, improvements, betterments,
renewals, substitutions and replacements to, or of any of the rights and
interests described in subparagraphs (a) through (f) above (hereinafter the
"Property Rights.")
TOGETHER WITH all right, title and interest, if any, including
any after-acquired right, title and interest, and including any right of use or
occupancy, which Mortgagor may now or hereafter acquire in and to all fixtures
and appurtenances of every nature whatsoever now or hereafter located in, on or
attached to, and used or intended to be used in connection with, or with the
operation of, the Premises, including, but not limited to (a) all apparatus,
machinery and equipment of Mortgagor and (b) all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to or of any
of the foregoing (the items described in the foregoing clauses (a) and (b) being
the "Fixtures"). It is mutually agreed, intended and declared that the Premises
and all of the Property Rights and Fixtures owned by Mortgagor (referred to
collectively herein as the "Real Property") shall, so far as permitted by law,
be deemed to form a part and parcel of the Land and for the purpose of this
Mortgage to be real estate and covered by this Mortgage. It is also agreed that
if any of the property herein mortgaged is of a nature so that a security
interest therein can be perfected under the Code in effect in the State, this
instrument shall constitute a security agreement, fixture filing and financing
statement, and Mortgagor agrees to execute, deliver and file or refile any
financing statement, continuation statement, or other instruments Mortgagee may
reasonably require from time to time to perfect or renew such security interest
under the Code. To the extent permitted by law, (i) all of the Fixtures are or
are to become fixtures on the Land and (ii) this instrument, upon recording or
registration in the real estate records of the proper office, shall constitute a
"fixture-filing" within the meaning of Sections 9-313 and 9-402 of the Code.
Subject to the terms and conditions of the Credit Agreement, the remedies for
any violation of the covenants, terms and conditions of the agreements herein
contained shall be as prescribed herein or by general law, or, as to that part
of the security in which a security interest may be perfected under the Code, by
the specific statutory consequences now or hereafter enacted and specified in
the Code, all at Mortgagee's sole election.
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TOGETHER WITH all the estate, right, title and interest of the
Mortgagor in and to (i) all judgments, insurance proceeds, awards of damages and
settlements resulting from condemnation proceedings or the taking of the Real
Property, or any part thereof, under the power of eminent domain or for any
damage (whether caused by such taking or otherwise) to the Real Property, or any
part thereof, or to any rights appurtenant thereto, and all proceeds of any
sales or other dispositions of the Real Property or any part thereof; and
(except as otherwise provided herein or in the Credit Agreement) the Mortgagee
is hereby authorized to collect and receive said awards and proceeds and to give
proper receipts and acquittances therefor, and to apply the same as provided in
the Credit Agreement; and (ii) all contract rights, general intangibles, actions
and rights in action relating to the Real Property including, without
limitation, all rights to insurance proceeds and unearned premiums arising from
or relating to damage to the Real Property; and (iii) all proceeds, products,
replacements, additions, substitutions, renewals and accessions of and to the
Real Property. (The rights and interests described in this paragraph shall
hereinafter be called the "Intangibles".)
As additional security for the Liabilities secured hereby,
Mortgagor (i) does hereby pledge and assign to Mortgagee from and after the date
hereof (including any period of redemption), primarily and on a parity with the
Real Property, and not secondarily, all the rents, issues and profits of the
Real Property and all rents, issues, profits, revenues, royalties, bonuses,
rights and benefits due, payable or accruing (including all deposits of money as
advance rent, for security or as xxxxxxx money or as down payment for the
purchase of all or any part of the Real Property) (the "Rents") under any and
all present and future leases, contracts or other agreements relative to the
ownership or occupancy of all or any portion of the Real Property, and (ii)
except to the extent such a transfer or assignment is not permitted by the terms
thereof, does hereby transfer and assign to Mortgagee all such leases and
agreements (including all Mortgagor's rights under any contracts for the sale of
any portion of the Mortgaged Property and all revenues and royalties under any
oil, gas and mineral leases relating to the Real Property) (the "Leases").
Mortgagee hereby grants to Mortgagor the right to collect and use the Rents as
they become due and payable under the Leases, but not more than one (1) month in
advance thereof, unless an Event of Default (as hereinafter defined) shall have
occurred provided that the existence of such right shall not operate to
subordinate this assignment to any subsequent assignment, in whole or in part,
by Mortgagor, and any such subsequent assignment shall be subject to the rights
of the Mortgagee under this Mortgage. Mortgagor further agrees to execute and
deliver such assignments of leases or assignments of land sale contracts as
Mortgagee may from time to time request. In the event of an Event of Default (1)
the Mortgagor agrees, upon demand, to deliver to the Mortgagee all of the Leases
with such additional assignments thereof as the Mortgagee may request and agrees
that the Mortgagee may assume the management of the Real Property and collect
the Rents, applying the same upon the Liabilities in the manner provided in the
Credit Agreement, and (2) the Mortgagor hereby authorizes and directs all
tenants, purchasers or other persons occupying or otherwise acquiring any
interest in any part of the Real Property to pay the Rents due under the Leases
to the Mortgagee upon request of the Mortgagee. Mortgagor hereby appoints
Mortgagee as its true and lawful attorney in fact to manage said property and
collect the Rents, with full power to bring suit for collection of the Rents and
possession of the Real Property, giving and granting unto said Mortgagee and
unto its agent or attorney full power and authority to do and perform all and
every act and thing whatsoever requisite and necessary to be
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done in the protection of the security hereby conveyed; provided, however, that
(i) this power of attorney and assignment of rents shall not be construed as an
obligation upon said Mortgagee to make or cause to be made any repairs that may
be needful or necessary and (ii) Mortgagee agrees that until such Event of
Default as aforesaid, Mortgagee shall permit Mortgagor to perform the
aforementioned management responsibilities. Upon Mortgagee's receipt of the
Rents, at Mortgagee's option, it may use the proceeds of the Rents to pay: (1)
reasonable charges for collection thereof, costs of necessary repairs and other
costs requisite and necessary during the continuance of this power of attorney
and assignment of rents, (2) general and special taxes, insurance premiums, and
(3) any or all of the Liabilities pursuant to the provisions of the Credit
Agreement. This power of attorney and assignment of rents shall be irrevocable
until this Mortgage shall have been satisfied and released of record and the
releasing of this Mortgage shall act as a revocation of this power of attorney
and assignment of rents. Mortgagee shall have and hereby expressly reserves the
right and privilege (but assumes no obligation) to demand, collect, xxx for,
receive and recover the Rents, or any part thereof, now existing or hereafter
made, and apply the same in accordance with the provisions of the Credit
Agreement.
All of the property described above, and each item of property
therein described, not limited to but including the Land, the Premises, the
Property Rights, the Fixtures, the Real Property, the Intangibles, the Rents and
the Leases, is herein referred to as the "Mortgaged Property."
Nothing herein contained shall be construed as constituting
the Mortgagee a mortgagee-in-possession in the absence of the taking of actual
possession of the Mortgaged Property by the Mortgagee. Nothing contained in this
Mortgage shall be construed as imposing on Mortgagee any of the obligations of
the lessor under any Lease of the Mortgaged Property in the absence of an
explicit assumption thereof by Mortgagee. In the exercise of the powers herein
granted the Mortgagee, except as provided in the Credit Agreement, no liability
shall be asserted or enforced against the Mortgagee, all such liability being
expressly waived and released by Mortgagor.
TO HAVE AND TO HOLD the Mortgaged Property, properties, rights
and privileges hereby conveyed or assigned, or intended so to be, unto
Mortgagee, its beneficiaries, successors and assigns, forever for the uses and
purposes herein set forth. Mortgagor hereby releases and waives all rights under
and by virtue of the Homestead Exemption Laws, if any, of the State and
Mortgagor hereby covenants, represents and warrants that, at the time of the
ensealing and delivery of these presents, Mortgagor is well seised of the
Mortgaged Property in fee simple and with lawful authority to sell, assign,
convey and mortgage the Mortgaged Property, and that the title to the Mortgaged
Property is free and clear of all encumbrances, except as described on Exhibit B
attached hereto and made a part hereof, and that, except for the encumbrances
set forth on Exhibit B, Mortgagor will forever defend the same against all
lawful claims.
The following provisions shall also constitute an integral
part of this Mortgage:
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1. Payment of Taxes on the Mortgage. Without limiting any of
the provisions of the Credit Agreement, Mortgagor agrees that, if the United
States or any department, agency or bureau thereof or if the State or any of its
subdivisions having jurisdiction shall at any time require documentary stamps to
be affixed to the Mortgage or shall levy, assess, or charge any tax, assessment
or imposition upon this Mortgage or the credit or indebtedness secured hereby or
the interest of Mortgagee in the Premises or upon Mortgagee by reason of or as
holder of any of the foregoing, then, Mortgagor shall pay for such documentary
stamps in the required amount and deliver them to Mortgagee or pay (or reimburse
Mortgagee for) such taxes, assessments or impositions. Mortgagor agrees to
exhibit to Mortgagee, at least annually and at any time upon request, official
receipts showing payment of all taxes, assessments and charges which Mortgagor
is required or elects to pay hereunder. Mortgagor agrees to indemnify Mortgagee
against liability on account of such documentary stamps, taxes, assessments or
impositions, whether such liability arises before or after payment of the
Liabilities and regardless of whether this Mortgage shall have been released.
2. Leases Affecting the Real Property. Mortgagor agrees
faithfully to perform all of its obligations under all present and future Leases
at any time assigned to Mortgagee as additional security, and to refrain from
any action or inaction which would result in termination of any such Leases or
in the diminution of the value thereof or of the Rents due thereunder. All
future lessees under any Lease made after the date of recording of this Mortgage
shall, at Mortgagee's option and without any further documentation, attorn to
Mortgagee as lessor if for any reason Mortgagee becomes lessor thereunder, and,
upon demand, pay rent to Mortgagee, and Mortgagee shall not be responsible under
such Lease for matters arising prior to Mortgagee becoming lessor thereunder.
3. Use of the Real Property. Mortgagor agrees that it shall
not permit the public to use the Real Property in any manner that might tend, in
Mortgagee's reasonable judgment, to impair Mortgagor's title to such property or
any portion thereof, or to make possible any claim or claims of easement by
prescription or of implied dedication to public use. Mortgagor shall not use or
permit the use of any part of the Real Property for an illegal purpose,
including, without limitation, the violation of any applicable environmental
laws, statutes, codes, regulations or practices.
4. Indemnification. Without limiting any indemnification
Mortgagor has granted in the Credit Agreement, Mortgagor agrees to indemnify and
hold harmless Mortgagee from and against any and all losses, suits, obligations,
fines, damages, judgments, penalties, claims, charges, costs and expenses
(including reasonable attorneys' and paralegals' fees, court costs and
disbursements) (collectively "Claims") which may be imposed on, incurred or paid
by or asserted against the Real Property by reason or on account of, or in
connection with (i) the construction, reconstruction or alteration of the Real
Property, (ii) any negligence or misconduct of Mortgagor, any lessee of the Real
Property, or any of their respective agents, contractors, subcontractors,
servants, employees, licensees or invitees, (iii) any accident, injury, death or
damage to any person or property occurring in, on or about the Real Property or
any street, drive, sidewalk, curb or passageway adjacent thereto, or (iv) any
other transaction arising out of or in any way connected with the Mortgaged
Property.
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5. Insurance. Mortgagor shall, at its sole expense, obtain
for, deliver to, assign and maintain for the benefit of Mortgagee, until the
Liabilities are paid in full, insurance policies as specified in the Credit
Agreement. In the event of a casualty loss, the net insurance proceeds from such
insurance policies shall be paid and applied as specified in the Credit
Agreement.
6. Condemnation Awards. Mortgagor hereby assigns to Mortgagee,
as additional security, all awards of damage resulting from condemnation
proceedings or the taking of or injury to the Real Property for public use, and
Mortgagor agrees that the proceeds of all such awards shall be paid and applied
as specified in the Credit Agreement.
7. Remedies of Mortgagee. Subject to the provisions of the
Credit Agreement, upon the occurrence of a Default under the terms of the Credit
Agreement ("Event of Default"), or Mortgagor's failure to comply with any of the
covenants hereinafter set forth in Paragraph 23, in addition to any rights and
remedies provided for in the Credit Agreement, and to the extent permitted by
applicable law, the following provisions shall apply:
(a) Acceleration. All Liabilities shall, at the option of
Mortgagee, become immediately due and payable without presentment, demand or
further notice.
(b) Mortgagee's Power of Enforcement. It shall be lawful for
Mortgagee to (i) immediately sell the Mortgaged Property either in whole or in
separate parcels, as prescribed by the State law, under power of sale, which
power is hereby granted to Mortgagee to the full extent permitted by the State
law, and thereupon, to make and execute to any purchaser(s) thereof deeds of
conveyance pursuant to applicable law or (ii) immediately foreclose this
Mortgage by judicial action. The court in which any proceeding is pending for
the purpose of foreclosure of this Mortgage, or any other court of competent
jurisdiction, may, at once or at any time thereafter, either before or after
sale, without notice and without requiring bond, and without regard to the
solvency or insolvency of any person liable for payment of the Liabilities
secured hereby, and without regard to the then value of the Mortgaged Property
or the occupancy thereof as a homestead, appoint a receiver (the provisions for
the appointment of a receiver and assignment of rents being an express condition
upon which the Loan, hereby secured is made) for the benefit of Mortgagee, with
power to collect the Rents, due and to become due, during such foreclosure suit
and the full statutory period of redemption notwithstanding any redemption. The
receiver, out of the Rents when collected, may pay costs incurred in the
management and operation of the Real Property, prior and subordinate liens, if
any, and taxes, assessments, water and other utilities and insurance, then due
or thereafter accruing, and may make and pay for any necessary repairs to the
Real Property, and may pay all or any part of the Liabilities or other sums
secured hereby or any deficiency decree entered in such foreclosure proceedings.
Upon or at any time after the filing of a suit to foreclose this Mortgage, the
court in which such suit is filed shall have full power to enter an order
placing Mortgagee in possession of the Real Property with the same power granted
to a receiver pursuant to this subparagraph and with all other rights and
privileges of a mortgagee-in-possession under applicable law.
(c) Mortgagee's Right to Enter and Take Possession, Operate
and Apply Income. Mortgagee shall, at its option, have the right, acting through
its agents or attorneys, either with or without process of law, forcibly or
otherwise, to enter upon and take possession of the Real
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Property, expel and remove any persons, goods, or chattels occupying or upon the
same, to collect or receive all the Rents, and to manage and control the same,
and to lease the same or any part thereof, from time to time, and, after
deducting all reasonable attorneys' fees and expenses, and all reasonable
expenses incurred in the protection, care, maintenance, management and operation
of the Real Property, distribute and apply the remaining net income in
accordance with the terms of the Credit Agreement or upon any deficiency decree
entered in any foreclosure proceedings.
8. Application of the Rents or Proceeds from Foreclosure or
Sale. In any foreclosure of this Mortgage by judicial action, or any sale of the
Mortgaged Property by advertisement, in addition to any of the terms and
provisions of the Credit Agreement and the Guaranty, there shall be allowed (and
included in the decree for sale in the event of a foreclosure by judicial
action) to be paid out of the Rents or the proceeds of such foreclosure
proceeding and/or sale:
(a) Liabilities. All of the Liabilities and other sums secured
hereby which then remain unpaid; and
(b) Other Advances. All other items advanced or paid by
Mortgagee pursuant to this Mortgage; and
(c) Costs, Fees and Other Expenses. All court costs,
reasonable attorneys' and paralegals' fees and expenses, appraiser's fees,
advertising costs, filing fees and transfer taxes, notice expenses, expenditures
for documentary and expert evidence, stenographer's charges, publication costs,
and costs (which may be estimated as to items to be expended after entry of the
decree) of procuring all abstracts of title, title searches and examinations,
title guarantees, title insurance policies, Torrens certificates and similar
data with respect to title which Mortgagee in the reasonable exercise of its
judgment may deem necessary. All such expenses shall become additional
Liabilities secured hereby when paid or incurred by Mortgagee in connection with
any proceedings, including but not limited to probate and bankruptcy
proceedings, to which Mortgagee shall be a party, either as plaintiff, claimant
or defendant, by reason of this Mortgage or any indebtedness hereby secured or
in connection with the preparations for the commencement of any suit for the
foreclosure, whether or not actually commenced, or sale by advertisement. The
proceeds of any sale (whether through a foreclosure proceeding or Mortgagee's
exercise of the power of sale) shall be distributed and applied in accordance
with the terms of the Credit Agreement.
9. Cumulative Remedies; Delay or Omission Not a Waiver. Each
remedy or right of Mortgagee shall not be exclusive of but shall be in addition
to every other remedy or right now or hereafter existing at law or in equity. No
delay in the exercise or omission to exercise any remedy or right accruing on
the occurrence or existence of any Event of Default shall impair any such remedy
or right or be construed to be a waiver of any such Event of Default or
acquiescence therein, nor shall it affect any subsequent Event of Default of the
same or different nature. Every such remedy or right may be exercised
concurrently or independently and when and as often as may be deemed expedient
by Mortgagee.
10. Mortgagee's Remedies against Multiple Parcels. If more
than one property, lot or parcel is covered by this Mortgage, and if this
Mortgage is foreclosed upon, or judgment is entered
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upon any Liabilities secured hereby, or if Mortgagee exercises its power of
sale, execution may be made upon or Mortgagee may exercise its power of sale
against any one or more of the properties, lots or parcels and not upon the
others, or upon all of such properties or parcels, either together or
separately, and at different times or at the same time, and execution sales or
sales by advertisement may likewise be conducted separately or concurrently, in
each case at Mortgagee's election.
11. No Merger. In the event of a foreclosure of this Mortgage
or any other mortgage or deed of trust securing the Liabilities, the Liabilities
then due the Mortgagee shall not be merged into any decree of foreclosure
entered by the court, and Mortgagee may concurrently or subsequently seek to
foreclose one or more mortgages or deeds of trust which also secure said
Liabilities.
12. Notices. All notices and other communications provided to
any party hereto under this Deed shall be in writing or by telex or by facsimile
and addressed or delivered to such party at its address set forth below or at
such other address as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid,
shall be deemed given when received; any notice, if transmitted by telex or
facsimile, shall be deemed given when transmitted (answerback confirmed in the
case of telexes).
if to Mortgagor:
Metrex Research Corporation
c/o Sybron Dental Management, Inc.
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer/Vice President-Finance
Telecopy No.: 714/516-7696
with a copy to:
Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Telecopy No.: 414/271-3552
if to Mortgagee:
ABN AMRO BANK N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxx
Telecopy No.: 312/606-8425
with a copy to:
Sidley & Austin
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx
Telecopy No.: 312/853-7036
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13. Extension of Payments. Mortgagor agrees that, without
affecting the liability of any person for payment of the Liabilities secured
hereby or affecting the lien of this Mortgage upon the Mortgaged Property or any
part thereof (other than persons or property explicitly released as a result of
the exercise by Mortgagee of its rights and privileges hereunder), Mortgagee may
at any time and from time to time, on request of the Mortgagor, without notice
to any person liable for payment of any Liabilities secured hereby, but
otherwise subject to the provisions of the Credit Agreement, extend the time, or
agree to alter or amend the terms of payment of such Liabilities. Mortgagor
further agrees that any part of the security herein described may be released
with or without consideration without affecting the remainder of the Liabilities
or the remainder of the security.
14. Governing Law. Mortgagor agrees that this Mortgage is to
be construed, governed and enforced in accordance with the laws of the State.
Wherever possible, each provision of this Mortgage shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Mortgage shall be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Mortgage.
15. Satisfaction of Mortgage. Upon full payment of all the
Liabilities, at the time and in the manner provided in the Credit Agreement, or
upon satisfaction of the conditions set forth in the Credit Agreement for
release of the Mortgaged Property from this Mortgage, this conveyance or lien
shall be null and void and, upon demand therefor following such payment or
satisfaction of the conditions set forth in the Credit Agreement, a satisfaction
of mortgage or reconveyance of the Mortgaged Property shall promptly be provided
by Mortgagee to Mortgagor.
16. Successors and Assigns Included in Parties. This Mortgage
shall be binding upon the Mortgagor and upon the successors, assigns and vendees
of the Mortgagor and shall inure to the benefit of the Mortgagee's successors
and assigns; all references herein to the Mortgagor and to the Mortgagee shall
be deemed to include their successors and assigns. Mortgagor's successors and
assigns shall include, without limitation, a receiver, trustee or debtor in
possession of or for the Mortgagor. Wherever used, the singular number shall
include the plural, the plural shall include the singular, and the use of any
gender shall be applicable to all genders.
17. Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Mortgagor agrees, to the full extent permitted by law, that at
all times following an Event of Default, neither Mortgagor nor anyone claiming
through or under it shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, or extension laws now or hereafter in force, in
order to prevent or hinder the enforcement or foreclosure of this Mortgage or
the absolute sale of the Mortgaged Property or the final and absolute putting
into possession thereof,
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immediately after such sale, of the purchaser thereat, and Mortgagor, for itself
and all who may at any time claim through or under it, hereby waives, to the
full extent that it may lawfully so do, the benefit of all such laws, and any
and all right to have the assets comprising the Mortgaged Property marshaled
upon any foreclosure of the lien hereof and agrees that Mortgagee or any court
having jurisdiction to foreclose such lien may sell the Mortgaged Property in
part or as an entirety. To the full extent permitted by law, Mortgagor hereby
waives any and all statutory or other rights of redemption from sale under any
order or decree of foreclosure of this Mortgage, on its own behalf and on behalf
of each and every person, acquiring any interest in or title to the Mortgaged
Property subsequent to the date hereof.
18. Interpretation with Other Documents. Notwithstanding
anything in this Mortgage to the contrary, in the event of a conflict or
inconsistency between the Mortgage and the Credit Agreement, the provisions of
the Credit Agreement shall govern, excepting, however, the governing law
provisions of this Mortgage to the extent such governing law provisions conflict
with those set forth in the Credit Agreement..
19. Future Advances. The parties hereto intend that, in
addition to any other debt or obligation secured hereby, this Mortgage shall
secure unpaid balances of the Loans and other such extensions of credit made
after this Mortgage is delivered to the Office of the Clerk and Recorder of
Xxxxxxx County, Colorado, whether made pursuant to an obligation of Mortgagee or
otherwise. Such Liabilities and other extensions of credit may or may not be
evidenced by notes executed pursuant to the Credit Agreement. All future
advances will have the same priority as the original advance.
20. Invalid Provisions to Affect No Others. In the event that
any of the covenants, agreements, terms or provisions contained in this Mortgage
shall be invalid, illegal or unenforceable in any respect, the validity of the
remaining covenants, agreements, terms or provisions contained herein or in the
Credit Agreement shall not be in any way affected, prejudiced or disturbed
thereby. In the event that the application of any of the covenants, agreements,
terms or provisions of this Mortgage is held to be invalid, illegal or
unenforceable, those covenants, agreements, terms and provisions shall not be in
any way affected, prejudiced or disturbed when otherwise applied.
21. Changes. Neither this Mortgage nor any term hereof may be
changed, waived, discharged or terminated orally, or by any action or inaction,
but only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought. To the
extent permitted by law, any agreement hereafter made by Mortgagor and Mortgagee
relating to this Mortgage shall be superior to the rights of the holder of any
intervening lien or encumbrance.
22. Final Payment. The last payment of the Loans secured by
this Mortgage is November 28, 2007 unless accelerated as provided in the Credit
Agreement.
23. Additional Covenants. In addition to all other covenants
and agreements in this Mortgage, Mortgagor covenants and agrees as follows:
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(a) To pay all principal, interest and other sums payable on
account of the Liabilities when due, as provided in the Credit Agreement.
(b) To perform all of Mortgagor's obligations hereunder and
under the Credit Agreement.
(c) To perform all of Mortgagor's obligations under the
Guaranty.
(d) To pay all taxes, assessments and other governmental
charges as provides in the Credit Agreement.
(e) To perform and comply with all covenants, conditions and
prohibitions required or Mortgagor in connection with any other encumbrances
affecting the Mortgaged Property.
(f) To maintain the Mortgaged Property in good condition and
repair and not commit or permit any waste with respect to the Mortgaged Property
and cause or permit any improvement on the Land to be removed, demolished or
materially altered, except as permitted in the Credit Agreement.
(g) To keep the Mortgaged Property free and clear of all liens
and claims of liens by contractors, subcontractors, mechanics, laborers,
materialmen and other such persons as provided in the Credit Agreement.
(h) Not to convey, lease or otherwise transfer, either
voluntary or involuntarily, the Mortgaged Property or any part thereof or
interest therein, except as permitted in the Credit Agreement.
(i) Not to create nor permit any prior lien or encumbrance
against the Mortgaged Property except as permitted in the Credit Agreement.
(j) To permit Mortgagee and any personal authorized by
Mortgagee to enter and inspect the Mortgaged Property at all reasonable times.
(k) Not to initiate, join in or consent to any change in
zoning ordinance or classification, any change in the "zone lot" or "zone lots"
(or similar zoning unit or units) presently affecting the Mortgaged Property,
any transfer or development rights, any change in any private restrictive
covenant, or any change in any other public or private restriction limiting or
defining the uses which may be made of the Mortgaged Property or any part
thereof, or cause or permit any discontinuance or abandonment of a permitted
nonconforming use under the applicable zoning laws without the written consent
of Mortgagee, except as otherwise provided in the Credit Agreement.
24. Time of Essence. Time is of the essence with respect to
the provisions of this Mortgage.
25. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Mortgage. In the
event an ambiguity or question of intent or
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interpretation arises, this Mortgage shall be construed as if drafted jointly by
the parties hereto and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Mortgage.
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IN WITNESS WHEREOF, this instrument is executed as of the day
and year first above written by the person or persons authorized to execute such
mortgage on behalf of Mortgagor (and said persons hereby represent that they
possess full power and authority to execute this instrument).
THE MORTGAGOR HEREBY DECLARES AND ACKNOWLEDGES THAT THE
MORTGAGOR HAS RECEIVED, WITHOUT CHARGE, A TRUE COPY OF THIS MORTGAGE.
MORTGAGOR:
METREX RESEARCH CORPORATION
a Wisconsin corporation
By
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Type or Print
Name:
----------------------
Its
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STATE OF _________ )
) SS
COUNTY OF ________ )
The foregoing instrument was acknowledged before me this _____
day of December, 2000 by ___________________ as ___________ President of Metrex
Research Corporation, a Wisconsin corporation.
WITNESS my hand and official seal this _____day of
_______________, 2000
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Notary Public
My commission expires:
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[SEAL]
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EXHIBIT A
Legal Description of the Land
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EXHIBIT B
Permitted Exceptions to Title
Those title exceptions listed on title commitment KC47672BOO,
dated December _____, 2000, issued by First American Heritage Title Co. for the
property described on Exhibit a hereto.
