REAL ESTATE MORTGAGE, SECURITY AGREEMENT
AND FIXTURE FILING
THIS REAL ESTATE MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING (the
"Instrument") is made this ______ day of January, 1996, between THE O'BOISIE
CORPORATION, whose address is 0000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxx 00000, (the "Borrower"), and KEEBLER CORPORATION, a Delaware
corporation, whose address is 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 (the
"Lender").
WHEREAS, Borrower is indebted to Lender in the principal sum of EIGHT
MILLION & 00/100 DOLLARS ($8,000,000.00), which indebtedness is evidenced by
Borrower's Secured Note of even date, together with any and all substitutions,
renewals, replacements or modifications which, in each instance, shall be
payable to the order of Lender (the "Note"), bearing interest at the rate of
interest set forth therein providing for the payment of principal and interest;
TO SECURE TO LENDER (i) the repayment of the indebtedness evidenced by the
Note, together with interest thereon, and all renewals, extensions and
modifications thereof, (ii) the performance of the covenants, agreements and
obligations of Borrower herein contained, and all renewals, extensions and
modifications hereof, and (iii) the performance of all obligations of Borrower
under any and all other instruments and documents given to evidence or further
secure the obligations provided for herein, and all renewals, extensions and
modifications thereof, and on account of all of the foregoing Borrower does
hereby MORTGAGE and WARRANT to Lender, its successors and assigns, all of
Borrower's estate, right, title and interest in, to and under the following
described property, whether now owned or hereafter held or acquired:
(i) That certain parcel of real property described in EXHIBIT A,
attached hereto and made a part hereof;
(ii) All buildings, improvements, structures and tenements now
situated or hereafter erected on said real property, all heretofore or hereafter
vacated alleys and streets abutting the property, all easements, rights,
appurtenances, rents, royalties, mineral, oil and gas rights and profits, water,
water rights and water stock appurtenant to the real property;
(iii) All fixtures and all machinery, equipment and inventory which are
to become fixtures, including but not limited to, the heating, cooling and
ventilating systems, lighting and electrical systems and fixtures, floor
coverings, wall coverings, window coverings, ceiling title and systems, windows,
doors,
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locks, plumbing systems and fixtures and any and all replacements thereof, now
or at any time acquired by Borrower and located in, on or about the real
property and used or intended to be used in connection therewith;
(iv) All rentals, revenues, payments, repayments, deposits, income,
charges and moneys derived from the use, lease, sublease, rental or other
disposition of the property and the proceeds from any insurance or condemnation
award pertaining thereto;
(v) All rights in all construction and architectural contracts for
the improvements and Borrower's rights in the plans and specifications with
respect thereto; and
(vi) All permits and licenses of all governmental or regulatory
authorities or of any persons, corporations, partnerships, trusts or other
entities, used or intended to be used in connection with the real property.
All of the property described in the foregoing subparagraphs, including all
proceeds and products thereof, and all replacements, additions and accessions
therefor and thereto, shall be deemed to be and remain a part of the real
property covered by this Instrument; and all of the foregoing, together with
said real property, are herein collectively referred to as the "Property."
In addition to any other debt and obligation secured hereby, this
Instrument shall secure unpaid balances of advances made for the payment of
taxes, assessments, insurance premiums, and other costs incurred for the
maintenance and protection of the Property including, without limitation, any
costs incurred in connection with any appropriate environmental tests,
inspections and, if necessary, remediation.
Borrower covenants, warrants, represents and agrees as follows:
1. PAYMENT OF OBLIGATIONS. Borrower shall promptly pay when due the
principal and interest on the indebtedness evidenced by the Note, any late
charges, prepayment premiums or other sums required to be paid by the Note, and
all other sums secured by this Instrument.
2. WARRANTIES. Borrower warrants that its has the right to mortgage,
convey, grant and assign the Property, that this Instrument is and will remain a
valid and enforceable first lien on the Property, and that Borrower shall
cooperate to preserve it's fee interest in the Property, and will forever
warrant and defend validity and priority of the lien hereof against the claims
of all persons and parties whomsoever. Borrower further warrants that
(i) Borrower has full power and authority to consummate the transactions
contemplated hereby and perform its
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obligations under this Instrument, the Note and any other documents given to
evidence or further secure the obligations provided for herein; and (ii) the
execution and delivery by Borrower of this Instrument, the Note, and any other
documents given to evidence or further secure the obligations provided for
herein do not and will not result in any breach of, or constitute a default
under, any mortgage, deed of trust, lease, bank loan or credit agreement or
other instrument or document to which Borrower is a party or by which it may be
bound or affected.
3. APPLICATION OF PAYMENTS. Unless applicable law provides otherwise,
all payments received by Lender from Borrower under the Note or this Instrument
shall be applied by Lender in the following order of priority: (i) interest
payable of advances made pursuant to paragraph 20 hereof, (ii) principal of
advances made pursuant to paragraph 20 hereof, (iii) interest payable on the
Note, (iv) principal of the Note, and (v) any other sums secured by this
Instrument in such order as Lender, at Lender's option, may determine.
4. TAXES AND IMPOSITIONS. Borrower agrees to pay, at least ten (10) days
prior to delinquency, all real property taxes and assessments, general and
special, and all other taxes and assessments of any kind or nature whatsoever,
including without limitation, service payments in lieu of real property taxes,
non-governmental levies or assessments such as maintenance charges, sewer user
charges, owner association dues or charges or fees, levies or charges resulting
from covenants, conditions and restrictions affecting the Property, which are
assessed or imposed upon the Property, or become due and payable, and which
create, may create or appear to create a lien upon the Property, or any part
thereof (all of which taxes, assessments and other charges of like nature are
hereinafter referred to as "Impositions"); provided, however, that if, by law,
any such Imposition is payable, or may at the option of Borrower be paid, in
installments, Borrower may pay the same together with any accrued interest on
the unpaid balance of such Impositions in installments as the same become due
and before any fine, penalty, interest or cost may be added thereto for the
nonpayment of any such installment and interest. Upon Lender's written request,
Borrower shall promptly furnish to Lender receipts evidencing such payments.
5. INTENTIONALLY OMITTED.
6. INSURANCE. Borrower shall keep the improvements now existing or
hereafter erected on the Property insured by financially sound and responsible
carriers authorized to do business in Indiana against loss by fire, hazards
included within the term "all risks of physical loss", rent loss and such other
hazards, casualties, liabilities and contingencies in such amounts, for such
periods, and under such standard policies as are consistent with amounts insured
by prudent business persons
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engaged in similar business and owning similar property. All premiums on
insurance policies shall be paid by Borrower making payment, when due, directly
to the carrier. Upon Lender's request, all insurance policies and renewals
thereof shall include a standard mortgage clause in favor of and in form
acceptable to Lender. Upon Lender's request, Borrower shall furnish copies of
all policies, and Borrower shall promptly furnish to Lender all renewal notices
and all receipts of paid premiums. At least thirty (30) days prior to the
expiration date of a policy, Borrower shall deliver to Lender a renewal policy
in form satisfactory to Lender.
In the event of loss, Borrower shall give immediate written notice to the
insurance carrier and to Lender. Borrower hereby authorizes and empowers Lender
as attorney-in-fact for Borrower to make proof of loss, to adjust and compromise
any claim under insurance policies, to appear in and prosecute any action
arising from such insurance policies, to collect and receive insurance proceeds,
and to deduct therefrom Lender's expenses incurred in the collection of such
proceeds; provided, however, that nothing contained in this paragraph 6 shall
require Lender to incur any expense or take any action hereunder. Borrower
further authorizes Lender, at Lender's option, (i) to hold the balance of such
proceeds to be used to reimburse Borrower for the cost of restoration or repair
of the Property, or (ii) to apply the balance of such proceeds to the payment of
the sums secured by this Instrument, whether or not then due, in the order of
application set forth in paragraph 3 hereof.
If the insurance proceeds are held by Lender to reimburse Borrower for the
cost of restoration or repair of the Property, the Property shall be restored to
the equivalent of its original condition on the date hereof. Lender may, at
Lender's option, condition disbursement of said proceeds on Lender's approval of
(i) plans and specifications for the restoration which shall be prepared by an
architect satisfactory to Lender, (ii) contractor's cost estimates,
(iii) architect's certificates with respect to the progress and status of
reconstruction, (iv) waivers of liens, sworn statements of mechanics and
materialmen and such other evidence of costs as Lender may request, (v) the
percentage of completion of construction, (vi) the Borrower's application of
payments, and (vii) the satisfactory discharge or bonding of such liens as
Lender may require. If the insurance proceeds are applied to the payment of the
sums secured by this Instrument, any such application of proceeds to principal
shall not extend or postpone the due dates of the monthly installments required
under the Note or change the amounts of such installments. If Lender acquires
title to the Property, Lender shall have all of the right, title and interest of
Borrower in and to any insurance policies and unearned premiums thereon and in
and to the proceeds resulting from any damage to the Property prior to such sale
or acquisition.
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7. CONDEMNATION. Borrower shall immediately notify Lender of any action
or proceeding relating to any condemnation or other taking, whether direct or
indirect, of the Property, or any part thereof, and Borrower shall appear in and
prosecute any such action or proceeding unless otherwise directed by Lender in
writing. Lender shall have the right, and Borrower hereby authorizes and
empowers Lender as attorney-in-fact for Borrower, to commence, appear in and
prosecute, in Lender's or Borrower's name, any action or proceeding relating to
any condemnation or other taking of the Property, whether direct or indirect,
and to settle or compromise any claim in connection with such condemnation or
other taking; provided, however, that nothing contained in this Paragraph 7
shall require Lender to incur any expenses or take any action hereunder.
Borrower hereby assigns to Lender all rights of Borrower in and to the proceeds
of any award, payment or claim for damages, direct or consequential, in
connection with any such condemnation or other taking, whether direct or
indirect, of the Property, or any part thereof, or for conveyances in lieu of
condemnation.
Any such awards, payments, proceeds or damages, or portion thereof to which
Borrower is entitled shall, after the deduction of Lender's expenses incurred in
the collection of such amounts, at the election of Lender, (i) be applied to the
reconstruction, restoration or repair of the Property in compliance with all
applicable legal requirements, or (ii) be applied to the payment of the sums
secured by this Instrument, whether or not then due, in the order of application
set forth in paragraph 3 hereof, with the balance, if any, to Borrower.
Borrower agrees to execute such further evidence of assignment of any awards,
proceeds, damages or claims arising in connection with such condemnation or
taking as Lender may require.
8. PRESERVATION AND MAINTENANCE OF PROPERTY. Borrower (i) shall not
commit waste or permit impairment or deterioration of the Property and shall not
abandon the Property, (ii) shall reconstruct, restore or repair promptly and in
a good and workmanlike manner all or any part of the Property to the equivalent
of its original condition on the date hereof, in the event of any damage, injury
or loss thereto, whether or not insurance proceeds or condemnation awards or
damages are available or adequate to cover, in whole or in part, the costs of
such reconstruction, restoration or repair, (iii) shall keep the Property and
any fixtures, equipment, machinery and appliances on the Property in at least
the same order and condition as on the date hereof, (iv) except with respect to
non-compliance as of the date hereof, shall comply with all zoning, building,
health and environmental laws, ordinances and regulations, and all other laws,
regulations and requirements of any governmental body or agency having
jurisdiction over the Property, or the use and occupancy thereof by Borrower,
and (v) except with respect to non-compliance as of the date hereof, shall
comply with all covenants and agreements of record affecting the Property.
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Neither Borrower nor any other person shall remove, demolish or alter any
improvement now existing or hereafter erected on the Property without the prior
written consent of Lender.
9. USE OF PROPERTY. Unless required by applicable law or unless Lender
has otherwise agreed in writing, Borrower shall not allow changes in the use for
which all or any part of the Property was intended at the time this Instrument
was executed. Borrower shall not initiate, approve, participate in or acquiesce
to any change in or modification to the zoning in effect for the Property or any
portion thereof unless Lender shall consent to such action.
10. LIENS. Borrower shall promptly discharge any lien which has, or may
have, priority over or equality with the lien of this Instrument, and Borrower
shall pay, when due, the claims of all persons supplying labor or materials to
or in connection with the Property. In the event a mechanic's lien shall be
filed against the Property, Borrower shall cause same to be satisfied or bonded
off within forty-five (45) days after the filing thereof. Without Lender's
prior written consent, Borrower shall not create, suffer, permit or allow any
statutory lien or other lien or encumbrance inferior or superior to or having
parity with this Instrument to be created or perfected against the Property.
Borrower hereby covenants and agrees that Lender shall be subrogated to the lien
of any mortgage or other lien discharged, in whole or in part, by the
indebtedness secured hereby.
11. INSPECTION AND ADDITIONAL DOCUMENTATION. With reasonable notice to
Borrower, Lender may make or cause to be made reasonable entries upon and
inspections of the Property to assure compliance with the terms of this
Instrument.
12. BOOKS AND RECORDS. Borrower shall keep and maintain at all times at
Borrower's address stated herein, complete and accurate books of accounts and
records adequate to reflect correctly the results of the operation of the
Property and copies of all written contracts, leases and other instruments which
affect the Property. Such books, records, contracts, leases and other
instruments shall be subject to examination and inspection at any reasonable
time by Lender.
13. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN BORROWER. In the
event Borrower shall, directly or indirectly, sell, transfer, assign, convey,
mortgage, lease substantially in its entirety or otherwise dispose of the
Property, or any part or parts thereof, or any legal or equitable interest
therein, including disposition by land installment contract, or in the event
there shall occur any changes, direct or indirect, in the ownership or control
of Borrower, Lender may, at Lender's option, declare all of the sums secured by
this Instrument to be immediately due and payable, and Lender may invoke any
default
6
remedies permitted by this Instrument, the Note or any other documents delivered
by Borrower to Lender in connection herewith.
14. INTENTIONALLY OMITTED.
15. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. In addition to being a
mortgage, this Instrument is intended to be a security agreement pursuant to the
Uniform Commercial Code as enacted in the state wherein the Property is located,
for any of the items specified above as part of the Property which, under
applicable law, may be subject to a security interest pursuant to the Uniform
Commercial Code, and Borrower hereby grants to Lender a security interest in
said items. Borrower agrees that Lender may file this Instrument, or a
reproduction thereof, in the real estate records or other appropriate index, as
a financing statement filed as a fixture filing with respect to all items
constituting a part of the collateral which are or are to become fixtures
related to the Property, in accordance with I.C. 26-1-9-402(6). The information
required under I.C. 26-1-9-402 is set forth in other provisions of this
Instrument. Borrower is the record owner of the Property. Any reproduction of
this Instrument or of any other security agreement or financing statement shall
be sufficient as a financing statement. In addition, Borrower agrees to execute
and deliver to Lender, upon Lender's request, any financing statements, as well
as extensions, renewals and amendments thereof, and reproductions of this
Instrument in such form as Lender may require to perfect a security interest
with respect to said items. Borrower shall pay all costs of filing such
financing statements and any extensions, renewals, amendments and releases
thereof, and shall pay all reasonable costs and expenses of any record searches
for financing statements which Lender may require. Without the prior written
consent of Lender, Borrower shall not create or suffer to be created pursuant to
the Uniform Commercial Code any other security interest in said items, including
replacements and additions thereto. Upon Borrower's breach of any covenant or
agreement of Borrower contained in this Instrument, Lender shall have the
remedies of a secured party under the Uniform Commercial Code and, at Lender's
option, may also invoke the remedies provided in this Instrument as to such
items. In exercising any of said remedies, Lender may proceed against the items
of real property and any items of personal property specified above as part of
the Property, separately or together and in any order whatsoever, without in any
way affecting the availability of Lender's remedies under the Uniform Commercial
Code or of the remedies provided in this Instrument.
16. INTENTIONALLY OMITTED.
17. ENVIRONMENTAL COMPLIANCE. From and after the date hereof, Borrower
agrees that it shall not cause or permit any hazardous material to be placed on
or in the Property in violation of applicable law. Borrower will not cause or
permit
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the use of the Property or any parcel adjacent thereto as a dump site or storage
site for hazardous materials, nor will Borrower cause or permit any
contamination on any part of the Property or any adjacent parcel.
Borrower hereby covenants and agrees to protect, defend, indemnify and hold
Lender harmless from and against any and all loss, cost (including attorneys'
fees), liability, damage or expense whatsoever incurred by Lender for
environmental matters which are a primary result of Borrower's acts or
activities occurring on or after the date hereof. The Borrower's obligations to
protect, defend, indemnify and hold Lender harmless, as set forth herein, shall
survive the payment of the indebtedness secured hereby and any release of this
Instrument.
18. ACCELERATION IN CASE OF BORROWER'S INSOLVENCY. If Borrower shall
voluntarily file a petition under the Federal Bankruptcy Code, as such Code may
from time to time be amended, or under any similar or successor Federal statute
relating to bankruptcy, insolvency, arrangements or reorganizations, or under
any state bankruptcy or insolvency act, or file an answer in any involuntary
proceedings admitting insolvency, failure or inability to pay debts, or if
Borrower shall fail to obtain a vacation or stay within sixty (60) days after
the filing thereof of involuntary proceedings brought for the reorganization,
dissolution or liquidation of Borrower, or if pursuant to the Federal Bankruptcy
Code an order for relief shall be entered against Borrower, or if a trustee or
receiver shall be appointed for Borrower or Borrower's property or if the
Property shall become subject to the jurisdiction of a Federal bankruptcy court
or similar state court, or if Borrower shall make an assignment for the benefit
of Borrower's creditors, or if there is an attachment, execution or other
judicial seizure of any portion of Borrower's assets and such seizure is not
discharged within ten (10) days, then all of the sums secured by this Instrument
shall, at Lender's option, become and be immediately due and payable without
prior notice to Borrower and without the need for any declaration or other
action by Lender or any other party, and Lender may invoke any remedies
permitted by paragraph 19 of this Instrument. Any attorney fees and other
expenses incurred by Lender in connection with Borrower's bankruptcy or any of
the other aforesaid events, which fees and expenses shall be additional
indebtedness of Borrower secured by this Instrument to the extent permitted by
law.
19. ACCELERATION; REMEDIES. Upon Borrower's breach of any covenant or
agreement of Borrower in this Instrument, including, but not limited to, the
covenants to pay when due any sums secured by this Instrument, or upon
Borrower's breach of any covenant or agreement in any other instrument or
document executed by Borrower to further secure the repayment of the Note,
Lender at Lender's option may declare all of the sums secured by this Instrument
to be immediately due and payable without further
8
demand and may foreclose this Instrument by judicial proceeding and may invoke
any other remedies permitted by applicable law or provided herein. Lender shall
be entitled to collect all costs and expenses incurred in pursuing such
remedies, including, but not limited to, attorney fees, costs of documentary
evidence and title reports, and, subject to Paragraph 17 herein, environmental
tests, inspections and, if necessary, remediation.
No remedy herein conferred upon or reserved to Lender is intended to be
exclusive of any other remedy or remedies, and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now hereafter existing at law or in equity or by statute. Such
remedies may be exercised concurrently, independently, or successively in any
order whatsoever.
20. PROTECTION OF LENDER'S SECURITY. If Borrower fails to perform the
covenants and agreements contained in this Instrument or if any action or
proceeding is commenced which affects the Property or title thereto or the
interest of Lender therein, including, but not limited to, eminent domain,
insolvency, code enforcement, or arrangements or proceedings involving a
bankrupt or decedent, then, at Lender's option, Lender may make such
appearances, disburse such sums and take such actions as Lender deems necessary,
in its sole discretion, to protect Lender's interest herein, including, but not
limited to, (i) disbursement of attorney fees, (ii) entry upon the Property to
make repairs or to conduct any appropriate environmental tests and inspections
or to perform any necessary remediation, (iii) procurement of satisfactory
insurance, and (iv) payment of Impositions.
Any amounts disbursed by Lender pursuant to this paragraph 20, together
with interest thereon, shall become additional indebtedness of Borrower secured
by this Instrument. Unless Borrower and Lender agree to other terms of payment,
such amounts shall be immediately due and payable and shall bear interest from
the date of disbursement at a rate equal to the default rate of interest set
forth in the Note. Nothing contained in this paragraph 20 shall require Lender
to incur any expense or take any action hereunder.
21. BORROWER AND LIEN NOT RELEASED. From time to time, Lender may, at
Lender's option, without giving notice to or obtaining the consent of Borrower,
Borrower's successors or assigns, without liability on Lender's part and
notwithstanding Borrower's breach of any covenant or agreement of Borrower in
this Instrument, extend the time for payment of the indebtedness evidenced by
the Note or any part thereof, reduce the payments thereon, release anyone liable
on any of said indebtedness, accept a renewal note or notes therefor, agree with
Borrower, in writing, to modify the terms and time of payment of said
indebtedness, release from the lien of this Instrument any part of the Property,
take or release other or additional security,
9
reconvey any part of the Property, consent to any map or plan of the Property,
consent to the granting of any easement, join in any extension or subordination
agreement, and agree in writing with Borrower to modify the rate of interest or
period of amortization of the Note. Any actions taken by Lender pursuant to the
terms of this paragraph 21 shall not affect the obligation of Borrower, or
Borrower's successors or assigns, to pay the sums secured by this Instrument and
to observe the covenants of Borrower contained herein, and shall not affect the
lien or priority of the lien hereof on the Property. Borrower shall pay Lender
a reasonable service charge, together with such title insurance premiums and
attorney fees as may be incurred, at Lender's option, for any such action if
taken at Borrower's request.
22. FORBEARANCE BY LENDER NOT A WAIVER. Any forbearance by Lender in
exercising any right or remedy hereunder, or otherwise afforded by applicable
law, shall not be a waiver of or preclude the exercise of any such right or
remedy. The acceptance by Lender of payment of any sum secured by this
Instrument after the due date of such payment shall not be a waiver of Lender's
right to either require prompt payment when due of all other sums so secured or
to declare a default for failure to make prompt payment.
23. ESTOPPEL CERTIFICATE. Borrower shall, within ten (10) days of written
request from Lender, furnish Lender with a written statement, duly acknowledge,
setting forth the sums secured by this Instrument and any right of set-off,
counterclaim or other defense which exists against such sums and the obligations
of Borrower under the Note and this Instrument.
24. NOTICE. Except for any notice required under applicable law to be
given in another manner, any notice to Borrower provided for in this instrument
shall be given by (i) personal delivery, (ii) mailing such notice by registered
or certified mail, return receipt requested, or (iii) recognized overnight
courier, addressed to Borrower at Borrower's address set forth in the original
paragraph hereof, or at such other address as Borrower may designate by notice
to Lender as provided herein, and any notice to Lender shall be given by (i)
personal delivery (ii) mailing such notice by registered or certified mail,
return receipt requested, or (iii) recognized overnight courier, to Lender's
address stated herein or to such other address as Lender may designate by notice
to Borrower as provided herein. Any notice provided for in this Instrument and
sent by registered or certified mail shall be deemed to have been given two (2)
days following the proper mailing of such notice, and if sent by overnight
courier, it shall be deemed to have been given one (1) day following the proper
mailing of such notice.
25. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; AGENTS;
CAPTIONS. The covenants and agreements herein
10
contained shall bind, and the rights hereunder shall inure to, the respective
successors and assigns of Lender and Borrower, subject to the provisions of
paragraph 13 hereof. This Instrument, and any instrument or documents made in
connection herewith, may be assigned by the Lender without notice to or the
consent of Borrower or any other party. All covenants and agreements of
Borrower shall be joint and several. In exercising any rights hereunder or
taking any actions provided for herein, Lender may act through its employees,
agents or independent contractors as authorized by Lender. The captions and
headings of the paragraphs of this Instrument are for convenience only and are
not to be used to interpret or define the provisions hereof.
26. GOVERNING LAW; SEVERABILITY. This Instrument shall be construed under
and governed by the law of the state wherein the Property is situated. In the
event that any provision of this Instrument or the Note conflicts with
applicable law, such conflict shall not affect any other provisions of this
Instrument or the Note which can be given effect without the conflicting
provisions, and to this end the provisions of this Instrument and the Note are
declared to be severable.
27. WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby waives the right to
assert any statute of limitations as a bar to the enforcement of the lien of
this Instrument or to any action brought to enforce the Note or any other
obligation secured by this Instrument. Notwithstanding the foregoing, nothing
in this paragraph is intended to constitute a waiver of Borrower's and Lender's
rights under I.C. 32-8-16-1.5, it being agreed that the parties may mutually
consent to such waiver in a separate subsequent writing.
28. WAIVER OF MARSHALLING. Notwithstanding the existence of any other
security interests in the Property held by Lender or by any other party, Lender
shall have the right to determine the order in which any or all of the Property
shall be subjected to the remedies provided herein. Lender shall have the right
to determine the order in which any or all portions of the indebtedness secured
hereby are satisfied from the proceeds realized upon the exercise of the
remedies provided herein. Borrower, any party who consents to this Instrument
and any party who now or hereafter acquires a security interest in the Property
and who has actual or constructive notice hereof, hereby waives any and all
right to require the marshalling of assets in connection with the exercise of
any of the remedies permitted by applicable law or provided herein.
29. LIMITATION OF LIABILITY. Lender shall look solely to Borrower's
interest in the Property for the recovery of any monetary or other judgment
against Borrower in connection with the Note, this Instrument or any other
document executed in connection herewith (collectively, the "Loan Documents"),
it being agreed that Borrower and any entity or person having any
11
interest, direct or indirect, in Borrower shall not be personally liable for the
payment of any sums due or the performance of any obligations under the Loan
Documents, except as provided herein, and provided that such limitation of
liability shall not constitute a waiver of any obligation evidenced by the Loan
Documents, nor release or impair the Note or the lien of this Instrument.
Borrower shall be personally liable (and Lender shall not be restricted from
obtaining any monetary or other judgment against such persons and entities) for
any actual loss (but not any consequential loss), cost (including reasonable
attorneys' fees) or liability of Lender as a result of any of the following:
(i) commission of any act of fraud in connection with the transactions
contemplated by the Loan Documents; (ii) failure to pay any taxes assessed or
payable with respect to the Property; (iii) commission or the suffrage of any
waste with respect to the Property, (iv) failure to indemnify Lender for any
damages Lender may sustain as a result of any adverse environmental condition
existing at the Property (except to the extent any such damage existed during
Lender's prior ownership of the Property or is caused by Lender after taking
possession of the Property by foreclosure or deed in lieu of foreclosure); or
(v) misappropriation of insurance proceeds or condemnation awards.
PROVIDED, however, that these presents are upon the condition that if the
Borrower shall well and truly pay to Lender, its successors and assigns, the
total of the indebtedness secured hereby, and shall fully keep and perform all
of the conditions, covenants and agreements to be kept and performed by Borrower
under this Instrument, then this Instrument shall be void; otherwise to remain
in full force and virtue in law and equity forever.
[Signature Page Immediately Following]
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IN WITNESS WHEREOF, the said Borrower hereunder duly authorized, has caused
this Instrument to be executed.
THE O'BOISIE CORPORATION
By:
--------------------------------
Name:
Title:
ATTEST:
By:
---------------------------
Name:
Title:
13
STATE OF __________ )
)SS:
COUNTY OF _________ )
Before me, a Notary Public in and for said County and State, personally
appeared ________________ and ______________, by me known and by me known to
be the _______________________ and ___________________, respectively, of The
O'Boisie Corporation, who acknowledged the execution of the foregoing "Real
Estate Mortgage, Security Agreement and Fixture Filing" on behalf of said
corporation.
Witness my hand and Notarial Seal this ________ day of January, 1996.
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Notary Public
-------------------------
(Printed Signature)
My Commission Expires:
--------------------
My County of Residence:
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This instrument prepared by and after recording return to:
Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxx X.
Xxxxxxxx, Esq.
14
EXHIBIT "A"
LEGAL DESCRIPTION
Tract 1
A part of the southeast quarter of Section 28, Township 27 North, Range 12 East,
beginning with the east right-of-way line of the Nickel Plate Railroad
intersects the south line of said section, thence east on the section line a
distance of 264 feet thence north a distance of 200 feet, thence east a distance
of 136 feet, thence north on a line parallel with the east line of said railroad
right-of-way a distance of 700 feet, thence west to the east line of said
railroad right-of-way a distance of 400 feet, thence south along the east line
of said railroad right-of-way a distance of 900 feet to the place of beginning,
containing approximately 7.65 acres, more or less.
Tract 2
Part of the south half of Section 28, Township 27 North, Range 12 East,
Lancaster Township, Xxxxx County, Indiana, and being more particularly described
as follows: Commencing at the point where the centerline of the Norfolk &
Southern Railroad intersects with the centerline of State Road 116, which is
also the south line of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx; thence east
on and along said south line of Section 28 a distance of 568.0 feet to a point;
thence in a northerly direction on the east property line of King property a
distance of 200.0 feet to a steel rod for the place of beginning; thence west
(which is parallel to the south line of said Section 28) a distance of 128.0
feet to a point; thence north (which is parallel to the east right-of-way line
of the Norfolk & Southern Railroad) a distance of 700.0 feet to a point; thence
west (which is parallel to the south line of said Section 28) a distance of
400.0 feet to a point on the east right-of-way line of the Norfolk and Southern
Railroad; thence north on and along said east line of said railroad a distance
of 200.0 feet to a point; thence east (which is parallel to the south line of
Section 28) a distance of 528.0 feet to a point; thence south and parallel to
the east right-of-way line of the Norfolk & Southern Railroad a distance of
900.0 feet to the place of beginning, containing 4.48 acres, more or less.
Tract 3
Part of the southeast quarter of Section 28, Township 27 North, Range 00 Xxxx,
Xxxxxxxxx Xxxxxxxx, Xxxxxxxx, Xxxxxxx, described as follows: Starting at the
southeast corner of said southeast quarter found per record witness; thence
westerly 2277.36 feet along the south line of said southeast quarter to a P.K.
nail set, which shall be the place of beginning, thence continuing westerly
132.0 feet along the south line of said southeast quarter to a P.K. nail
A-1
set; thence northerly, deflecting right 89 degrees 40 minutes, 200.0 feet to a
pipe stake found; thence easterly, deflecting right 90 degrees 20 minutes, 132.0
feet parallel with the south line of said southeast quarter to a 5/8" rebar
stake set; thence southerly, deflecting right 89 degrees 40 minutes, 200.0 feet
to the place of beginning, containing 0.61 acres, more or less.
A-2
