Exhibit 4.16.1
REAL ESTATE MORTGAGE, SECURITY AGREEMENT
AND FIXTURE FILING
THIS INSTRUMENT (hereinafter called the "Mortgage") made this 15th day of
September, 2003, by CASTING TECHNOLOGY COMPANY, an Indiana general partnership,
having its principal office at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000
("Mortgagor"), in favor of THE PROVIDENT BANK, an Ohio banking corporation,
having an address of Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000
("Mortgagee");
W I T N E S S E T H:
FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein
recited, the receipt of which is hereby acknowledged, Mortgagor hereby mortgages
and warrants to Mortgagee, its successors and assigns, and grants it and them a
security interest in and lien upon, the following property, to-wit:
The real estate located in Xxxxxxx County, Indiana, which is described on
Exhibit A attached hereto and incorporated herein by reference as though
set forth herein in full ("Property"); and
The personal property described on Exhibit B attached hereto and
incorporated herein by reference as though set forth herein in full;
TOGETHER WITH, all rents, issues, profits, royalties, income and other
benefits derived from the Property (collectively the "Rents"), subject to the
right, power and authority hereinafter given to Mortgagor to collect and apply
such rents;
TOGETHER WITH, all leasehold estate, right, title and interest of Mortgagor
in and to all leases or subleases covering the Property or any portion thereof
now or hereafter existing or entered into, and all right, title and interest of
Mortgagor thereunder, including, without limitation, all cash or security
deposits, advance rentals, and deposits or payments of similar nature;
TOGETHER WITH, all right, title and interest of Mortgagor in and to all
options to purchase or lease the Property or any portion thereof or interest
therein, and any greater estate in the Property owned or hereafter acquired;
TOGETHER WITH, all interests, estate or other claims, both at law and in
equity, which Mortgagor now has or may hereafter acquire in the Property;
TOGETHER WITH, all easements, rights-of-way and rights used in connection
therewith or as a means of access thereto, and all tenements, hereditaments and
appurtenances thereof and thereto, and all water rights and shares of stock
evidencing the same;
TOGETHER WITH, all rights, title and interest of Mortgagor, now owned or
hereafter acquired, in and to any land lying within the right-of-way of any
street, open or proposed, adjoining the Property, and any and all sidewalks,
alleys and strips and gores or land adjacent to or used in connection with the
Property;
TOGETHER WITH, any and all buildings and improvements now or hereafter
erected thereon, including, but not limited to, the fixtures, attachments,
appliances, equipment, machinery and other articles attached to said buildings
and improvements (the "Improvements");
TOGETHER WITH, all right, title and interest of Mortgagor in and to all
fixtures owned by Mortgagor and now or at any time hereafter located on or at
the Property or used in connection therewith and the personal property described
on Exhibit B attached hereto and incorporated herein by reference as though set
forth herein in full (collectively, the "Personal Property"); and
TOGETHER WITH, all the estate, interest, right, title, other claim or
demand, including claims or demands with respect to the proceeds of insurance in
effect with respect thereto, which Mortgagor now has or may hereafter acquire in
the Property, and any and all awards made for the taking by eminent domain, or
by any proceedings or purchase in lieu thereof, of the whole or any part of the
Mortgaged Property (as hereinafter defined), including, without limitation, any
awards resulting from a change of grade of streets and awards for severance
damages.
The property and interest hereby mortgaged to Mortgagee may hereafter
be referred to as the "Mortgaged Property". The Mortgagor covenants that it is
lawfully seized of the Mortgaged Property and has fee simple title to the
Property; that it has a good right to convey the same; that the Mortgaged
Property is free from all liens and encumbrances, except those matters more
particularly described in Exhibit C attached hereto and incorporated herein by
reference (the "Permitted Exceptions"); and that the Mortgagor will warrant and
defend the title to the Mortgaged Property against all claims made thereon other
than Permitted Exceptions.
FOR THE PURPOSE OF SECURING:
Payment of indebtedness in the principal amount of Five Million Dollars
($5,000,000) with interest thereon, evidenced by a Credit Note of even date
herewith (such Credit Note, as the same may be hereinafter modified, amended,
restated, extended or renewed, being referred to herein as the "Credit Note"),
due and payable on or before September 30, 2006 (on terms which are more fully
provided in the hereinafter described Credit Agreement), executed by Mortgagor,
which has been delivered to and is payable to the order of Mortgagee, and which
by this reference is hereby made a part hereof, and any and all modifications,
amendments, restatements, extensions, or renewals thereof;
Payment of indebtedness in the principal amount of Three Million Dollars
($3,000,000) with interest thereon, evidenced by a Term Note of even date
herewith (such Term Note, as the same may be hereinafter modified, amended,
restated, extended or renewed, being referred to herein as the "Term Note"), due
and payable on or before September 30, 2008 (on terms which are more fully
provided in the hereinafter described Credit Agreement), executed by Mortgagor,
which has been delivered to and is payable to the order of Mortgagee, and which
by this reference is hereby made a part hereof, and any and all modifications,
amendments, restatements, extensions, or renewals thereof (the Credit Note and
the Term Note being hereinafter referred to collectively as the "Notes");
Performance of all Obligations, as defined in that certain Credit Agreement
of even date herewith between Mortgagor and Mortgagee (such Credit Agreement, as
the same may be modified, amended or restated from time to time, being referred
to herein as "Credit Agreement");
Payment of all sums advanced by Mortgagee to protect the Mortgaged
Property, with interest thereon at the default rate of interest provided in the
Notes (the "Default Rate") and payment of any and all amounts set forth in
Section 1.21 hereof; and Payment of all other sums, with interest thereon, which
may hereafter be lent to Mortgagor, or its successors or assigns, by Mortgagee,
when evidenced by a promissory note or Note (or other writing) reciting that
they are secured by this Mortgage.
Without limiting the foregoing, this Mortgage also secures all obligations
of the Mortgagor owed to the Mortgagee or an affiliate of the Mortgagee, whether
absolute or contingent and howsoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions
therefor), under (i) any and all Rate Hedging Agreements, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any Rate
Hedging Agreement. For purposes hereof, the term "Rate Hedging Agreement" means
an agreement, device or arrangement providing for payments which are related to
fluctuations of interest rates, exchange rates or forward rates, including, but
not limited to, dollar-denominated or cross-currency interest rate exchange
agreements, forward currency exchange agreements, interest rate cap or collar
protection agreements, forward rate currency or interest rate options, puts and
warrants.
In addition to the foregoing, this Mortgage also secures future advances to
Mortgagor and obligations of Mortgagor to Mortgagee, direct or indirect,
absolute or contingent, including, without limitation, obligations under Rate
Hedging Agreements, in an amount up to Five Million Dollars ($5,000,000) to the
same extent as if the future obligation and/or advance were made on the date of
this Mortgage.
This Mortgage, the Notes, the Credit Agreement, any guaranty thereof and
any other instrument given to evidence or further secure the payment and
performance of any obligation secured hereby may hereafter be referred to
collectively as the "Loan Instruments.
MORTGAGOR HEREBY COVENANTS AND AGREES AS FOLLOWS:
Article 1. COVENANTS AND AGREEMENTS OF MORTGAGOR
Mortgagor hereby covenants and agrees:
1.01 Payment of Secured Obligations. To pay when due the principal of
and interest on the indebtedness evidenced by the Notes, charges, fees and all
other sums as provided in the Loan Instruments, and the principal of and
interest on any future advances secured by this Mortgage.
1.02 Maintenance, Repair, Alterations. To keep the Mortgaged Property
in good condition and repair, not to remove, except as herein provided, or
demolish (except such alterations as may be required by laws, ordinances or
regulations) any of the Improvements without the prior written consent of the
Mortgagee; to complete promptly and in good and workmanlike manner any building
or other improvement which may be constructed on the Property and promptly
restore in like manner any Improvement which may be damaged or destroyed
thereon, and to pay when due, all claims for labor performed and materials
furnished therefor, to comply with all laws, ordinances, regulations, covenants,
conditions and restrictions now or hereafter affecting the Mortgaged Property or
any part thereof or requiring any alterations or improvements; not to commit or
permit any waste or deterioration of the Mortgaged Property, to keep and
maintain abutting grounds, sidewalks, roads, parking and landscape areas in good
and neat order and repair; to comply with the provisions of any lease, if this
Mortgage is on a leasehold; not to commit, suffer or permit any act to be done
in or upon the Mortgaged Property in violation of any law, ordinance or
regulation.
1.03 Required Insurance. To at all times provide, maintain and keep in
force the following policies of insurance:
(a) Insurance against loss or damage to the Improvements by fire and
any of the risks covered by insurance of the type now known as "fire and
extended coverage", in an amount not less than the full replacement cost of
the Improvements (exclusive of the cost of excavations, foundations and
footing below the lowest basement floor); and with not more than Five
Thousand Dollars ($5,000) deductible from the loss payable for any
casualty. The policies of insurance carried in accordance with this
subparagraph (a) shall contain the "Replacement Cost Endorsement";
(b) Comprehensive public liability insurance (including coverage for
elevators and escalators, if any, on the Mortgaged Property) on an
"occurrence basis" against claims for "personal injury" including, without
limitation, bodily injury, death or property damage occurring on, in or
about the Mortgaged Property and the adjoining streets, sidewalks and
passageways, such insurance to afford immediate minimum protection to a
limit of One Million Dollars ($1,000,000) per occurrence with respect to
personal injury or death to any one or more persons or damage to property;
(c) During the course of any construction or repair of improvements on
the Property, builder's completed value risk insurance against "all risks
of physical loss", including collapse and transit coverage, during
construction of such improvements, with
deductibles not to exceed Five Thousand Dollars ($5,000), in non-reporting
form, covering the total value of work performed and equipment, supplies
and materials furnished. Said policy of insurance shall contain the
"permission to occupy upon completion of work or occupancy" endorsement;
(d) During the course of any construction or repair of Improvements on
the Property, worker's compensation insurance (including employer's
liability insurance, if requested by Mortgagee) for all employees of
Mortgagor engaged on or with respect to the Mortgaged Property in such
amount as is customarily maintained by companies engaged in business
similar to that of the Mortgagor, or, if such limits are established by
law, in such amounts;
(e) Flood insurance, if and to the extent required by law;
(f) Such other insurance, and in such amounts, as may from time to
time be customarily maintained by companies engaged in business similar to
that of the Mortgagor against the same or other hazards; Mortgagee shall be
listed as an additional insured under the insurance required under
Paragraph 1.03(b). The insurance required by Paragraph 1.03(a) and (c)
shall include a standard mortgagee clause in favor of and in form
acceptable to Mortgagee.
All policies of insurance required by the terms of this Mortgage shall
contain an endorsement or agreement by the insurer that any loss shall be
payable in accordance with the terms of such policy notwithstanding any act or
negligence of Mortgagor which might otherwise result in forfeiture of said
insurance and the further agreement of the insurer waiving all rights of set
off, counterclaim or deductions against Mortgagor.
1.04 Delivery of Policies, Payment of Premiums. That all policies of
insurance shall be issued by companies and in amounts in each company
customarily maintained by companies engaged in business similar to that of the
Mortgagor. All policies of insurance shall have attached thereto a lender's loss
payable endorsement for the benefit of Mortgagee in form satisfactory to
Mortgagee. Mortgagor shall furnish Mortgagee with an original policy or
certified copies of all policies of required insurance. If Mortgagee consents to
Mortgagor providing any of the required insurance through blanket policies
carried by Mortgagor and covering more than one location, then Mortgagor shall
furnish Mortgagee with a certificate of insurance for each such policy setting
forth the coverage, the limits of liability, the name of the carrier, the policy
number, and the expiration date. Within ten (10) days of the Mortgagee's receipt
of a notice of cancellation or expiration of insurance, Mortgagor shall furnish
Mortgagee with evidence satisfactory to Mortgagee of the payment of premium and
the reissuance of a policy continuing insurance in force as required by this
Mortgage. All such policies shall contain a provision that such policies will
not be cancelled, amended, altered, changed or modified, nor shall any coverage
therein be reduced, deleted, amended, modified, changed or cancelled by either
the party named as the insured, or the insurance company issuing the policy
without at least thirty (30) days prior written notice to Mortgagee. In the
event Mortgagor fails to provide, maintain, keep in force or deliver and furnish
to Mortgagee the policies of insurance required by this Section, Mortgagee may
procure such insurance or single-interest insurance for such risks covering
Mortgagee's interest, and Mortgagor will pay all premiums thereon promptly upon
demand by Mortgagee, and until such payment is made by Mortgagor the amount of
all such premiums together with interest thereon at the highest default rate
provided in the Notes, shall be secured by this Mortgage. After the occurrence
of an event of default hereunder and at the request of Mortgagee, Mortgagor
shall: (a) deposit with Mortgagee in monthly installments, an amount equal to
one-twelfth (1/12) of the estimated aggregate annual insurance premiums on all
policies of insurance required by this Mortgage, and (b) cause all bills,
statements or other documents relating to the foregoing insurance premiums to be
sent or mailed directly to Mortgagee. Upon receipt of such bills, statements or
other documents, and providing Mortgagor has deposited sufficient funds with
Mortgagee pursuant to this Section 1.04, Mortgagee shall pay such amounts as may
be due thereunder out of the funds so deposited with Mortgagee. If at any time
and for any reason the funds deposited with Mortgagee are or will be
insufficient to pay such amounts as may then or subsequently be due, Mortgagee
shall notify Mortgagor and Mortgagor shall immediately deposit an amount equal
to such deficiency with Mortgagee. Notwithstanding the foregoing, nothing
contained herein shall cause Mortgagee to be deemed a trustee of said funds or
to be obligated to pay any amounts in excess of the amount of funds deposited
with Mortgagee pursuant to this Section 1.04. Mortgagee may commingle said
reserve with its own funds and Mortgagor shall be entitled to no interest
thereon.
1.05 Insurance Proceeds. That after the happening of any casualty to the
Mortgaged Property or any part thereof, Mortgagor shall give prompt written
notice thereof to Mortgagee.
(a) In the event of any damage or destruction to the Improvements,
Mortgagee shall receive the entire proceeds of any insurance payable on
account thereof, provided, however, so long as no uncured event of default
exists under the terms of the Loan Instruments and such damage or
destruction can be repaired in a reasonable time and in any event prior to
the maturity date of the Notes, such proceeds shall, at the option of
Mortgagor, be made available to restore the Improvements to the same
condition as existed immediately prior to such casualty. In the event such
proceeds are insufficient to effect such restoration, Mortgagee shall have
no obligation to make such proceeds available to restore the Improvements
unless the Mortgagor furnishes satisfactory evidence of the availability of
funds to complete such restoration. Provided, further, in the event that
such insurance proceeds exceed the total cost of restoration, such excess
proceeds shall be retained by Mortgagee and applied to reduce the then
outstanding indebtedness evidenced by the Notes.
(b) In the event of such loss or damage, all proceeds of insurance
shall be payable to Mortgagee, and Mortgagor hereby authorizes and directs
any affected insurance company to make payment of such proceeds directly to
Mortgagee. After consultation with Mortgagor, Mortgagee is hereby
authorized and empowered by Mortgagor to settle, adjust or compromise any
claims for loss, damage or destruction under any policy or policies of
insurance.
(c) Except to the extent that insurance proceeds are received by
Mortgagee and applied to payment in full of the indebtedness secured
hereby, nothing herein contained shall be deemed to excuse Mortgagor from
repairing or maintaining the Mortgaged Property as provided in Section 1.02
hereof or restoring all damage or destruction to the Mortgaged Property,
regardless of whether or not there are insurance
REAL ESTATE MORTGAGE, SECURITY AGREEMENT AND FIXTURE FILING
PAGE 6
proceeds available or whether any such proceeds are sufficient in
amount, and the application or release by Mortgagee of any insurance
proceeds shall not cure or waive any default or notice of default under
this Mortgage or invalidate any act done pursuant to such notice.
(d) Any insurance proceeds that are to be applied under the
terms of this Mortgage for restoration of the Improvements shall be
disbursed by Mortgagee in accordance with its standard disbursement
procedures for construction loans.
1.06 Assignment of Policies Upon Foreclosure. In the event of
foreclosure of this Mortgage or other transfer of title or assignment of the
Mortgaged Property in extinguishment, in whole or in part, of the debt secured
hereby, all right, title and interest of Mortgagor in and to all policies of
insurance required by this Section shall inure to the benefit of and pass to the
successor in interest to Mortgagor or the purchaser or grantee of the Mortgaged
Property.
1.07 Indemnification; Subrogation; Waiver of Offset.
(a) If Mortgagee is made a party defendant to any litigation
concerning this Mortgage or the Mortgaged Property or any part thereof
or interest therein, or the occupancy thereof by Mortgagor, then
Mortgagor shall indemnify, defend and hold Mortgagee harmless from all
liability by reason of said litigation, including reasonable attorneys'
fees and expenses incurred by Mortgagee in any such litigation, whether
or not any such litigation is prosecuted to judgment, except for
liability caused by Mortgagee's gross negligence or wilful misconduct.
If Mortgagee commences an action against Mortgagor to enforce any of
the terms hereof or because of the breach by Mortgagor of any of the
terms hereof, or for the recovery of any sum secured hereby, Mortgagor
shall pay to Mortgagee reasonable attorneys' fees and expenses, and the
right to such attorneys' fees and expenses shall be deemed to have
accrued on the commencement of such action, and shall be enforceable
whether or not such action is prosecuted to judgment. If Mortgagor
breaches any term of this Mortgage, Mortgagee may employ an attorney or
attorneys to protect its rights hereunder, and in the event of such
employment following any breach by Mortgagor, Mortgagor shall pay
Mortgagee reasonable attorneys' fees and expenses incurred by
Mortgagee, whether or not an action is actually commenced against
Mortgagor by reason of breach; (b) Mortgagor waives any and all right
to claim or recover against Mortgagee, its officers, employees, agents
and representatives, for loss of or damage to Mortgagor, the Mortgaged
Property, Mortgagor's property or the property of others under
Mortgagor's control from any cause insured against or required to be
insured against by the provisions of this Mortgage; (c) All sums
payable by Mortgagor hereunder shall be paid without notice, demand,
counterclaim, setoff, deduction or defense and without abatement,
suspension, deferment, diminution or reduction, and the obligations and
liabilities of Mortgagor hereunder shall in no way be released,
discharged or otherwise affected (except as expressly provided herein)
by reason of: (i) any damage to or destruction of or any condemnation
or similar taking of the Mortgaged Property or any part thereof; (ii)
any restriction or prevention of or interference with any use of the
Mortgaged Property or any
part thereof; (iii) any title defect or encumbrance or any eviction from the
Property or the Improvements or any part thereof by title paramount or
otherwise; (iv) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to
Mortgagor, or any action taken with respect to this Mortgage by any trustee or
receiver of Mortgagor, or by any court, in any such proceeding; (v) any claim
which Mortgagor has or might have against Mortgagee; (vi) any default or failure
on the part of Mortgagee to perform or comply with any of the terms hereof or of
any other agreement with Mortgagor; or (vii) any other occurrence whatsoever,
whether similar or dissimilar to the foregoing; whether or not Mortgagor shall
have notice or knowledge of any of the foregoing. Except as expressly provided
herein, to the extent permitted by applicable law, Mortgagor waives all rights
now or hereafter conferred by statute or otherwise to any abatement, suspension,
deferment, diminution or reduction of any sum secured hereby and payable by
Mortgagor.
1.08 Taxes and Impositions.
(a) Mortgagor agrees to pay, 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, nongovernmental levies
or assessments such as maintenance charges, owner association dues or charges or
fees, levies or charges resulting from covenants, conditions and restrictions
affecting the Mortgaged Property, which are assessed or imposed upon the
Mortgaged Property, or become due and payable, and which create, may create or
appear to create a lien upon the Mortgaged Property, or any part thereof, or
upon any Personal Property, equipment or other facility used in the operation or
maintenance thereof (all of which taxes, assessments and other governmental
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 the taxpayer be paid, in installments, Mortgagor may pay the same together
with any accrued interest on the unpaid balance of such Imposition 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;
(b) If at any time after the date hereof there shall be assessed or imposed
(i) a tax or assessment on the Mortgaged Property in lieu of or in addition to
the Impositions payable by Mortgagor pursuant to subparagraph (a) hereof, or
(ii) a license fee, franchise fee, tax or assessment imposed on Mortgagee and
measured by or based in whole or in part upon the amount of the outstanding
obligations secured hereby, then all such taxes, assessments or fees shall be
deemed to be included within the term "Impositions" as defined in subparagraph
(a) hereof, and Mortgagor shall pay and discharge the same as herein provided
with respect to the payment of Impositions. Anything to the contrary herein
notwithstanding, Mortgagor shall have no obligation to pay any franchise,
estate, inheritance, income, intangibles, excess profits or similar tax levied
on Mortgagee or on the obligations secured hereby;
(c) Subject to the provisions of subparagraph (d) of this Section 1.08,
Mortgagor covenants to furnish Mortgagee within twenty (20) days after
Mortgagee's written request to Mortgagor, official receipts of the appropriate
taxing authority, or other
proof satisfactory to Mortgagee, evidencing the payments of any such Impositions
that were due and payable;
(d) Mortgagor shall have the right before any delinquency occurs to contest
or object to the amount or validity of any such Imposition by appropriate legal
proceedings, but this shall not be deemed or construed in any way as relieving,
modifying or extending Mortgagor's covenant to pay any such Imposition at the
time and in the manner provided in this Section 1.08, unless Mortgagor has given
prior written notice to Mortgagee of Mortgagor's intent to so contest or object
to an Imposition, and unless, at Mortgagee's sole option, (i) Mortgagor shall
demonstrate to Mortgagee's satisfaction that the legal proceedings shall
conclusively operate to prevent the sale of the Mortgaged Property, or any part
thereof, to satisfy such Imposition prior to final determination of such
proceedings; or (ii) Mortgagor shall furnish a good and sufficient bond or
surety as requested by and satisfactory to Mortgagee; or (iii) Mortgagor shall
have provided a good and sufficient undertaking as may be required or permitted
by law to accomplish a stay of such proceedings;
(e) After the occurrence of an event of default hereunder and at the
request of Mortgagee, Mortgagor shall pay to Mortgagee, on the first (1st) day
of each month, an amount equal to one-twelfth (1/12) of the annual Impositions
reasonably estimated by Mortgagee to pay the installment of taxes next due on
the Mortgaged Property. In such event, Mortgagor further agrees to cause all
bills, statements or other documents relating to Impositions to be sent or
mailed directly to Mortgagee. Upon receipt of such bills, statements or other
documents, and providing Mortgagor has deposited sufficient funds with Mortgagee
pursuant to this Section 1.08, Mortgagee shall pay such amounts as may be due
thereunder out of the funds so deposited with Mortgagee. If at any time and for
any reason the funds deposited with Mortgagee are or will be insufficient to pay
such amounts as may then or subsequently be due, Mortgagee shall notify
Mortgagor and Mortgagor shall immediately deposit an amount equal to such
deficiency with Mortgagee. Notwithstanding the foregoing, nothing contained
herein shall cause Mortgagee to be deemed a trustee of said funds or to be
obligated to pay any amounts in excess of the amount of funds deposited with
Mortgagee pursuant to this Section 1.08. Mortgagee shall not be obliged to pay
or allow any interest on any sums held by Mortgagee pending disbursement or
application hereunder, and Mortgagee may impound or reserve for future payment
of Impositions such portion of such payments as Mortgagee may in its absolute
discretion deem proper, applying the balance on the principal of or interest on
the obligations secured hereby. Should Mortgagor fail to deposit with Mortgagee
(exclusive of that portion of said payments which has been applied by Mortgagee
on the principal of or interest on the indebtedness secured by the Loan
Instruments) sums sufficient to fully pay such Impositions at least thirty (30)
days before delinquency thereof, Mortgagee may, at Mortgagee's election, but
without any obligation so to do, advance any amounts required to make up the
deficiency, which advances, if any, shall be secured hereby and shall be
repayable to Mortgagee as herein elsewhere provided, or at the option of
Mortgagee the latter may, without making any advance whatever, apply any sums
held by it upon any obligation of the Mortgagor secured hereby. Should any
default occur or exist on the part of the Mortgagor in the payment or
performance of any of Mortgagor's obligations under the terms of the
Loan Instruments, Mortgagee may, at any time at Mortgagee's option,
apply any sums or amounts in its hands received pursuant hereto, or as
rents or income of the Mortgaged Property or otherwise, upon any
indebtedness or obligation of the Mortgagor secured hereby in such
manner and order as Mortgagee may elect. The receipt, use or
application of any such sums paid by Mortgagor to Mortgagee hereunder
shall not be construed to affect the maturity of any indebtedness
secured by this Mortgage or any of the rights or powers of Mortgagee
under the terms of the Loan Instruments or any of the obligations of
Mortgagor under this Mortgage;
(f) Mortgagor covenants and agrees not to suffer, permit or initiate
the joint assessment of the real and personal property, or any other
procedure whereby the lien of the real property taxes and the lien of the
personal property taxes shall be assessed, levied or charged to the
Mortgaged Property as a single lien; and
(g) If requested by Mortgagee, Mortgagor shall cause to be furnished
to Mortgagee a tax reporting service covering the Mortgaged Property of the
type, duration and with a company satisfactory to Mortgagee.
1.09 Utilities. To pay when due all utility charges which are incurred
by Mortgagor for the benefit of the Mortgaged Property or which may become a
charge or lien against the Mortgaged Property for gas, electricity, water or
sewer services furnished to the Mortgaged Property and all other assessments or
charges of a similar nature, whether public or private, affecting the Mortgaged
Property or any portion thereof, whether or not such taxes, assessments or
charges are liens thereon.
1.10 Ground Leases. To pay when due all rents and other payments and
perform all covenants and agreements contained in any lease, sublease or ground
lease which may constitute a portion of or an interest in the Property; not to
surrender, assign or sublease any such lease, sublease or ground lease, nor take
any other action which would effect or permit the termination of any such lease,
sublease or ground lease. Mortgagor covenants to furnish to Mortgagee within
thirty (30) days after the date upon which such rents or other payments are due
and payable by Mortgagor, receipts or other evidence satisfactory to Mortgagee
evidencing the payment thereof.
1.11 Actions Affecting Mortgaged Property. To appear in and contest any
action or proceeding purporting to affect the security hereof or the rights or
powers of Mortgagee; and to pay all costs and expenses, including costs of
evidence of title and attorney's fees, in any such action or proceeding in which
Mortgagee may appear.
1.12 Actions by Mortgagee to Preserve Mortgaged Property. That should
Mortgagor fail to make any payment or to do any act that constitutes an event of
default under any of the Loan Instruments, Mortgagee in its own discretion,
without obligation so to do, after written notice to Mortgagor, and without
releasing Mortgagor from any obligation, may make or do the same in such manner
and to such extent as may be deemed necessary to protect the security hereof. In
connection therewith (without limiting its general powers), Mortgagee shall have
and is hereby given the right, but not the obligation, (i) to enter upon and
take possession of the Mortgaged Property in accordance with applicable law,
(ii) to make additions, alterations, repairs and improvements to the Mortgaged
Property which it may consider necessary or proper
to keep the Mortgaged Property in good condition and repair; (iii) to appear and
participate in any action or proceeding affecting or which may affect the
security hereof or the rights or powers of Mortgagee; (iv) to pay, purchase,
contest or compromise any encumbrance, claim, charge, lien or debt which in the
judgment of it may affect or appears to affect the security of this Mortgage or
be prior or superior hereto; and (v) in exercising such powers, to pay necessary
expenses, including employment of counsel or other necessary or desirable
consultants. Mortgagor shall, immediately upon demand therefor by Mortgagee, pay
all reasonable costs and expenses incurred by Mortgagee in connection with the
exercise by Mortgagee of the foregoing rights, including, without limitation,
costs of evidence of title, court costs, appraisals, surveys and reasonable
attorneys' fees.
1.13 Survival of Warranties. To fully and faithfully satisfy and
perform the obligations of Mortgagor contained in the Credit Agreement, and each
agreement of Mortgagor incorporated by reference therein or herein, and any
modification or amendment thereof. All representations, warranties and covenants
of Mortgagor contained therein or incorporated by reference shall survive the
advances evidenced by the Notes and shall remain continuing obligations,
warranties and representations of Mortgagor during any time when any portion of
the obligations secured by this Mortgage remain outstanding.
1.14 Eminent Domain. That should the Mortgaged Property, or any part
thereof or interest therein, be taken or damaged by reason of any public
improvement or condemnation proceeding, or in any other manner ("Condemnation"),
or should Mortgagor receive any notice or other information regarding such
proceeding, Mortgagor shall give prompt written notice thereof to Mortgagee.
(a) Mortgagee shall be entitled to all compensation, awards
and other payments or relief therefor, and shall be entitled at its
option to commence, appear in and prosecute in its own name any such
action or proceeding. Upon consultation with Mortgagor, Mortgagee shall
also be entitled to make any compromise or settlement in connection
with such taking or damage. All such compensation, awards, damages,
rights of action and proceeds awarded to Mortgagor (the "Proceeds") are
hereby assigned to Mortgagee and Mortgagor agrees to execute such
further assignments of the Proceeds as Mortgagee may require.
(b) In the event any portion of the Mortgaged Property is so
taken or damaged, Mortgagee shall have the option, in its sole and
absolute discretion, to apply all such Proceeds, after deducting
therefrom all costs and expenses (regardless of the particular nature
thereof and whether incurred with or without suit), including
attorneys' fees, incurred by it in connection with such Proceeds, upon
any indebtedness secured hereby and in such order as Mortgagee may
determine, or to apply all such Proceeds, after such deductions, to the
restoration of the Mortgaged Property upon such conditions as Mortgagee
may determine. Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done
pursuant to such notice.
1.15 Additional Security. That in the event Mortgagee at any time
holds additional security for any of the obligations secured hereby, it may
enforce the sale thereof or otherwise realize upon the same, at its option,
either before or concurrently herewith or after a sale is made hereunder.
1.16 Successors and Assigns. That this Mortgage applies to, inures to
the benefit of, and binds all parties hereto, their heirs, legatees, devisees,
administrators, executors, successors and assigns.
1.17 Inspections. That Mortgagee, or its agents, representatives or
workmen, are authorized to enter at any reasonable time upon or in any part of
the Mortgaged Property for the purpose of inspecting the same and for the
purpose of performing any of the acts it is authorized to perform under the
terms of any of the Loan Instruments.
1.18 Liens. To pay when due, at Mortgagor's cost and expense, all
liens, encumbrances and charges upon the Mortgaged Property, or any part thereof
or interest therein; provided that the existence of any mechanic's, laborer's,
materialman's, supplier's, or vendor's lien or right thereto shall not
constitute a violation of this Section if payment is not yet due under the
contract which is the foundation thereof and if such contract does not postpone
payment for more than fifty-five (55) days after the performance thereof.
Mortgagor shall have the right to contest in good faith the validity of any such
lien, encumbrance or charge, provided Mortgagor shall first deposit with
Mortgagee a bond or other security satisfactory to Mortgagee in such amounts as
Mortgagee shall reasonably require, but not more than one and one-half of the
amount of the claim, and provided further, that Mortgagor shall thereafter
diligently proceed to cause such lien, encumbrance or charge to be removed and
discharged. If Mortgagor shall fail to discharge any such lien, encumbrance or
charge, then, in addition to any other right or remedy of Mortgagee, Mortgagee
may, but shall not be obligated to, discharge the same, either by paying the
amount claimed to be due, or by procuring the discharge of such lien by
depositing in court a bond for the amount claimed or otherwise giving security
for such claim, or in such manner as is or may be prescribed by law.
1.19 Mortgagee's Powers. Without affecting the liability of any other
person liable for the payment of any obligation herein mentioned, and without
affecting the lien or charge of this Mortgage upon any portion of the Mortgaged
Property not then or theretofore released as security for the full amount of all
unpaid obligations, Mortgagee may, from time to time and without notice (i)
release any person so liable, (ii) extend the maturity or alter any of the terms
of any such obligation, (iii) grant other indulgences, (iv) release or reconvey,
or cause to be released or reconveyed at any time at Mortgagee's option any
parcel, portion or all of the Mortgaged Property, (v) take or release any other
or additional security for any obligation herein mentioned, or (vi) make
compositions or other arrangements with debtors in relation thereto.
1.20 Tradenames. At the request of Mortgagee, Mortgagor shall execute a
certificate in form satisfactory to Mortgagee listing the tradenames under which
Mortgagor intends to operate the Mortgaged Property, and representing and
warranting that Mortgagor does business under no other tradenames with respect
to the Mortgaged Property. Mortgagor shall immediately notify Mortgagee in
writing of any change in said tradenames, and will, upon request of Mortgagee,
execute any additional financing statements and other certificates revised to
reflect the change in tradename.
1.21 Reimbursement for Expenses. Mortgagor shall pay all costs
incidental to the Mortgaged Property and/or the indebtedness secured hereby,
including, but not limited to, title insurance, survey charges, reasonable
attorneys' costs and fees, appraisals, insurance, inspecting engineers' and/or
architects' fees, fees for environmental assessments, any and all expenses
incurred by Mortgagee with respect to environmental matters and all other
incidental expenses of Mortgagee with respect to the Mortgaged Property and/or
the indebtedness secured hereby. All such fees and expenses shall be paid by
Mortgagor upon receipt of a statement therefor.
1.22 Environmental Indemnity. Mortgagor agrees to:
(i) conduct and complete all investigations, studies, sampling
and testing, and all remedial removal and other actions necessary to
clean up and remove all Hazardous Materials (as hereinafter defined)
on, under, from or affecting the Mortgaged Property in accordance with
all applicable federal, state and local laws, ordinances, rules,
regulations and policies, and in accordance with the orders and
directives of all federal, state and local governmental authorities;
and
(ii) defend, indemnify and hold harmless Mortgagee, its
employees, agents, officers and directors from and against any claims,
demands, penalties fines, liabilities, settlements, damages, costs or
expenses of whatever kind or nature, including attorneys' fees, fees
of environmental consultants and laboratory fees, known or unknown,
contingent or otherwise arising out of or in any way related to:
(1) the presence, disposal, release or threatened release of any
Hazardous Materials on, over, under, from or affecting the Mortgaged
Property or the soil, water, vegetation, buildings, personal property,
persons or animals thereon;
(2) any personal injury (including wrongful death) or property
damage (real or personal) arising out of or related to such Hazardous
Materials;
(3) any lawsuit brought or threatened, settlement reached or
governmental order relating to such Hazardous Materials; and/or
(4) any violation of laws, orders, regulations, requirements or
demands of government authorities, which are based upon or in any way
related to such Hazardous Materials.
In the event the Mortgage is foreclosed or Mortgagor tenders a deed in
lieu of foreclosure, Mortgagor shall deliver the Mortgaged Property to Mortgagee
free of any and all Hazardous Materials so that the condition of the Mortgaged
Property shall conform with all applicable federal, state and local laws,
ordinances, rules or regulations affecting the Mortgaged Property. For purposes
of this Mortgage, "Hazardous Materials" includes, without limitation, any
existing and future asbestos, polychlorinated biphenyls and petroleum products
and any flammable explosives, radioactive materials, hazardous materials,
hazardous wastes, regulated, hazardous or toxic substances, infectious materials
or related materials defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 USC ss.9601, et seq.),
the Hazardous Materials Transportation Act, as amended (49 USC ss.1801 et seq.),
the Resource Conservation and Recovery Act, as amended (42 USC ss.6901 et seq.)
and in the regulations adopted and publications promulgated pursuant thereto, or
any other federal, state or local governmental law, ordinance, rule or
regulation concerning health, safety and protection of, or regulation of the
discharge of substances into, the environment. The
provisions of this paragraph shall be in addition to any and all other
obligations and liabilities Mortgagor may have to Mortgagee at common law and
shall survive the repayment of all sums due under the Notes and the other Loan
Instruments and the satisfaction of all of the other obligations of Mortgagor
hereunder and under the other Loan Instruments.
Article 2. ASSIGNMENT OF RENTS, ISSUES AND PROFITS
2.01 Assignment of Rents. Mortgagor hereby assigns and transfers to
Mortgagee all the rents, issues and profits of the Mortgaged Property, and
hereby gives to and confers upon Mortgagee the right, power and authority to
collect such rents, issues and profits. Mortgagor irrevocably appoints Mortgagee
its true and lawful attorney-in-fact, at the option of Mortgagee at any time and
from time to time, to demand, receive and enforce payment, to give receipts,
releases and satisfactions, and to xxx, in the name of Mortgagor or Mortgagee,
for all such rents, issues and profits and apply the same to the indebtedness
secured hereby; provided, however, that Mortgagor shall have the right to
collect such rents, issues and profits (but not more than two months in advance)
prior to or at any time there is not an event of default under any of the Loan
Instruments. The assignment of the rents, issues and profits of the Mortgaged
Property in this Article II is intended to be an absolute assignment from
Mortgagor to Mortgagee and not merely the passing of a security interest;
provided that Mortgagee shall not have the right to collect the same until there
has been a default by the Mortgagor under any of the covenants of the Loan
Instruments.
2.02 Collection Upon Default. Upon any event of default under any of
the Loan Instruments, Mortgagee may, at any time without notice, either in
person, by agent or by a receiver appointed by a court, and without regard to
the adequacy of any security for the indebtedness hereby secured, enter upon and
take possession of the Mortgaged Property, or any part thereof, in its own name
xxx for or otherwise collect such rents, issues and profits, including those
past due and unpaid, and apply the same, less costs and expenses of operation
and collection, including attorneys' fees, upon any indebtedness secured hereby,
and in such order as Mortgagee may determine. The collection of such rents,
issues and profits, or the entering upon and taking possession of the Mortgaged
Property, or the application thereof as aforesaid, shall not cure or waive any
default or notice of default hereunder or invalidate any act done in response to
such default or pursuant to such notice of default.
2.03 Assignment of Leases. Mortgagor hereby assigns and transfers to
Mortgagee as additional security for the payment of the indebtedness secured
hereby, all present and future leases and subleases of all or any part of the
Mortgaged Property and agrees to execute and deliver, at the request of
Mortgagee, all such further assurances and assignments of the Mortgaged Property
as Mortgagee shall from time to time require. In the event Mortgagor, as such
additional security has sold, transferred and assigned, or may hereafter sell,
transfer and assign, to Mortgagee, its successors and assigns, any interest of
Mortgagor as lessor in any lease or leases, Mortgagor expressly covenants and
agrees that if Mortgagor, as lessor under said lease or leases so assigned shall
fail to perform and fulfill any term, covenant, condition or provision in said
lease or leases, or any of them, on its part to be performed or fulfilled, at
the times and in the manner in said lease or leases provided, or if Mortgagor
shall suffer or permit to occur any breach or default under the provisions of
any such assignment of any lease or leases, then and in
any such event, such breach or default shall constitute an event of default
hereunder as such term is defined in Section 4.01 hereof.
2.04 Mortgagee's Right of Possession in Case of Default. In any case in
which under the provisions of this Mortgage Mortgagee has a right to institute
foreclosure proceedings, whether before or after the whole principal sum secured
hereby is declared to be immediately due, or whether before or after the
institution of legal proceedings to foreclose the lien hereof or before or after
sale thereunder, forthwith, upon demand of Mortgagee, Mortgagor shall surrender
to Mortgagee and Mortgagee shall be entitled to take actual possession of the
Mortgaged Property or any part thereof personally, or by its agent or attorneys,
as for condition broken. In such event Mortgagee in its discretion may, with
process of law, enter upon and take and maintain possession of all or any part
of the Mortgaged Property, together with all documents, books, records, papers,
and accounts of Mortgagor or then owner of the Mortgaged Property relating
thereto, and may exclude Mortgagor, its agents or servants, wholly therefrom and
may as attorney in fact or agent of Mortgagor, or in its own name as Mortgagee
and under the powers herein granted, hold, operate, manage and control the
Mortgaged Property and conduct the business, if any, thereof, either personally
or by its agents, and with full power to use such measures, legal or equitable,
as in its discretion or in the discretion of its successors or assigns, may be
deemed proper or necessary to enforce the payment or security of the avails,
rents, issues, and profits of the Mortgaged Property, including actions for the
recovery of rent, actions in forcible detainer and actions in distress for rent,
and with full power: (a) to cancel or terminate any lease or sublease for any
cause or on any ground which would entitle Mortgagor to cancel the same; (b) to
elect to disaffirm any lease or sublease which is then subordinate to the lien
hereof; (c) to extend or modify any then existing leases and to make new leases,
which extensions, modifications and new leases may provide for terms to expire,
or for options to lessees to extend or renew terms to expire, beyond the
maturity date of the indebtedness hereunder and beyond the date of the issuance
of a deed or deeds to a purchaser or purchasers at a foreclosure sale, it being
understood and agreed that any such leases, and the options or other such
provisions to be contained therein, shall be binding upon Mortgagor and all
persons whose interests in the Mortgaged Property are subject to the lien hereof
and upon the purchaser or purchasers at any foreclosure sale, notwithstanding
any redemption from sale, discharge of the indebtedness secured hereby,
satisfaction of any foreclosure decree, or issuance of any certificate of sale
or deed to any purchaser; (d) to make all necessary or proper repairs,
decorating, renewals, replacements, alterations, additions, betterments and
improvements to the Mortgaged Property as to it may seem judicious; (e) to
insure and reinsure the same and all risks incidental to Mortgagee's possession,
operation and management thereof; and (f) to receive all of such avails, rents,
issues and profits; hereby granting full power and authority to exercise each
and every of the rights, privileges and powers herein granted at any and all
times hereafter, without notice to Mortgagor.
Mortgagee shall not be obligated to perform or discharge, nor does it
hereby undertake to perform or discharge, any obligation, duty or liability
under any leases. Mortgagor shall and does hereby agree to indemnify and hold
Mortgagee harmless of and from any and all liability, loss or damage which it
may or might incur under said leases or under or by reason of the assignment
thereof and of and from any and all claims and demands whatsoever which may be
asserted against it by reason of any alleged obligations or undertakings on its
part to perform or
discharge any of the terms, covenants or agreements contained in said leases,
except for liabilities, losses or damages caused by Mortgagee's gross negligence
or wilful misconduct. Should Mortgagee incur any such liability, loss or damage,
under said leases or under or by reason of the assignment thereof, or in the
defense of any claims or demands, the amount thereof, including costs, expenses
and reasonable attorneys' fees, shall be secured hereby, and Mortgagor shall
reimburse Mortgagee therefor immediately upon demand.
2.05 Application of Income Received by Mortgagee. Mortgagee, in the
exercise of the rights and powers hereinabove conferred upon it by Section 2.01
and Section 2.04 hereof, shall have full power to use and apply the avails,
rents, issues and profits of the Mortgaged Property to the payment of or on
account of the following, in such order as Mortgagee may determine:
(a) to the payment of the operating expenses of the Mortgaged
Property, including cost of management and leasing thereof (which
shall include reasonable compensation to Mortgagee and its agent or
agents, if management be delegated to an agent or agents, and shall
also include lease commissions and other compensation and expenses of
seeking and procuring tenants and entering into leases), established
claims for damages, if any, and premiums on insurance hereinabove
authorized;
(b) to the payment of taxes and special assessments now due or
which may hereafter become due on the Mortgaged Property;
(c) to the payment of all repairs, decorating, renewals,
replacements, alterations, additions, betterments, and improvements of
the Property, and of placing the Mortgaged Property in such condition
as will, in the judgment of Mortgagee, make it readily rentable;
(d) to the payment of any indebtedness secured hereby or any
deficiency which may result from any foreclosure sale.
Article 3. SECURITY AGREEMENT
3.01 Creation of Security Interest. Mortgagor hereby grants to
Mortgagee a security interest in the Personal Property, including without
limitation, any and all property of similar type or kind hereafter located on or
at the Property for the purpose of securing all obligations of Mortgagor
contained in any of the Loan Instruments.
3.02 Warranties, Representations and Covenants of Mortgagor. Mortgagor
hereby warrants, represents and covenants, except as otherwise disclosed or
permitted in the Credit Agreement, as follows:
(a) Except for the security interest granted hereby, Mortgagor is, and
as to portions of the Personal Property to be acquired after the date
hereof will be, the sole owner of the Personal Property, free from any
adverse lien, security interest, encumbrance or adverse claims thereon of
any kind whatsoever except Permitted Encumbrances (as defined in the Credit
Agreement). Mortgagor will notify Mortgagee of, and will defend the
Personal Property against, all claims and demands of all persons at any
time claiming the same or any interest therein;
(b) Except in the ordinary course of Mortgagor's business and
except as otherwise provided in the Credit Agreement, Mortgagor will
not lease, sell, convey or in any manner transfer the Personal Property
without the prior written consent of Mortgagee;
(c) The Personal Property is not used or bought for personal,
family or household purposes;
(d) The Personal Property will be kept on or at the Property and
Mortgagor will not remove the Personal Property from the Property
without the prior written consent of Mortgagee, except as provided in
the Credit Agreement, and except such portions or items of Personal
Property which are consumed, replaced or worn out in ordinary usage,
all of which shall be promptly replaced by Mortgagor;
(e) Mortgagor maintains a place of business in the State of
Indiana and Mortgagor will immediately notify Mortgagee in writing of
any change in its place of business as set forth in the beginning of
this Mortgage;
(f) Mortgagee is authorized to file one or more financing
statements and renewals and amendments thereof pursuant to the Uniform
Commercial Code of Indiana in form satisfactory to Mortgagee, and
Mortgagor will pay the cost of filing the same in all public offices
wherever filing is deemed by Mortgagee to be necessary or desirable;
(g) All covenants and obligations of Mortgagor contained herein
relating to the Mortgaged Property shall be deemed to apply to the
Personal Property whether or not expressly referred to herein;
(h) This Mortgage constitutes a Security Agreement as that term
is used in the Uniform Commercial Code of Indiana.
Article 4. REMEDIES UPON DEFAULT
4.01 Events of Default. Any of the following events shall be deemed an
event of default hereunder:
(a) A "Default" shall occur under the Credit Agreement; or
(b) A writ of execution or attachment or any similar process shall be
issued or levied against all or any part of the Mortgaged Property, or any
judgment involving monetary damages shall be entered against Mortgagor
which shall become a lien on the Mortgaged Property, or any portion thereof
or interest therein and such execution, attachment or similar process or
judgment is not released, bonded, satisfied, vacated or stayed within sixty
(60) days after its entry or levy; or
(c) Except as provided herein or in the Credit Agreement, Mortgagor
sells, assigns, conveys or otherwise transfers any part of its ownership
(either legal or equitable) in the Mortgaged Property, without the prior
written consent of Mortgagee; or
(e) Except as provided in the Credit Agreement, the Mortgaged Property
is further encumbered by a mortgage, deed of trust or other security
instrument, without the prior written consent of Mortgagee; or
(f) The institution of any foreclosure proceeding by the holder of any
mortgage or lien upon the Mortgaged Property or security interest in the
Personal Property.
4.02 Acceleration Upon Default, Additional Remedies. Upon the occurrence of
any event of default, Mortgagee may declare all indebtedness secured hereby to
be due and payable and the same shall thereupon become immediately due and
payable without any presentment, demand, protest or notice of any kind.
Thereafter, Mortgagee may:
(a) Either in person or by agent, with or without bringing any
action or proceeding, enter upon and take possession of the Mortgaged
Property in accordance with applicable law, or any part thereof, in its
own name, and do any acts which it deems necessary or desirable to
preserve the value, marketability or rentability of the Mortgaged
Property or part thereof or interest therein, increase the income
therefrom or protect the security hereof and, with or without taking
possession of the Mortgaged Property, xxx for or otherwise collect the
rents, issues and profits thereof, including those past due and unpaid,
and apply the same in accordance with Section 2.05 hereof. The entering
upon and taking possession of the Mortgaged Property, the collection of
such rents, issues and profits and the application thereof as
aforesaid, shall not cure or waive any default or notice of default
hereunder or invalidate any act done in response to such default or
pursuant to such notice of default and notwithstanding the continuance
in possession of the Mortgaged Property or the collection, receipt and
application of rents, issues or profits, Mortgagee shall be entitled to
exercise every right provided for in any of the Loan Instruments or by
law upon occurrence of any event of default;
(b) Commence an action to foreclose this Mortgage, appoint a receiver,
or specifically enforce any of the covenants hereof;
(c) Exercise any or all of the remedies available to a secured party
under the Uniform Commercial Code of Indiana, including, but not limited
to:
(i) Either personally or by means of a court appointed receiver,
take possession of all or any of the Personal Property and exclude
therefrom Mortgagor and all others claiming under Mortgagor, and
thereafter hold, store, use, operate, manage, maintain and control,
make repairs, replacements, alterations, additions and improvements to
and exercise all rights and powers of Mortgagor in respect to the
Personal Property or any part thereof. In the event Mortgagee demands
or attempts to take possession of the Personal Property in the
exercise of any rights under any of the Loan Instruments, Mortgagor
promises and agrees to promptly turn over and deliver complete
possession thereof to Mortgagee;
(ii) Without notice to or demand upon Mortgagor, make such
payments and do such acts as Mortgagee may deem necessary to protect
its security interest in the Personal Property, including without
limitation, paying, purchasing, contesting, or compromising any
encumbrance, charge or lien which is prior to or superior to the
security interest granted hereunder, and in exercising any such powers
or authority to pay all expenses incurred in connection therewith;
(iii) Require Mortgagor to assemble the Personal Property or any
portion thereof, at a place designated by Mortgagee and reasonably
convenient to both parties, and promptly to deliver such Personal
Property to Mortgagee, or an agent or representative designated by it.
Mortgagee, and its agents and representatives shall have the right to
enter upon any or all of Mortgagor's premises and property to exercise
Mortgagee's rights hereunder;
(iv) Sell, lease or otherwise dispose of the Personal Property at
public sale, with or without having the Personal Property at the place
of sale, and upon such terms and in such manner as Mortgagee may
determine. Mortgagee may be a purchaser at any such sale;
(v) Unless the Personal Property is perishable or threatens to
decline speedily in value or is of a type customarily sold on a
recognized market, Mortgagee shall give Mortgagor at least ten (10)
days prior written notice of the time and place of any public sale of
the Personal Property or other intended disposition thereof. Such
notice may be mailed to Mortgagor at the address set forth at the
beginning of this Mortgage.
4.03 Foreclosure; Expense of Litigation. When the indebtedness hereby
secured, or any part thereof, shall become due, whether by acceleration or
otherwise, Mortgagee shall have the right to foreclose the lien hereof for such
indebtedness or part thereof. In any suit to foreclose the lien hereof or to
enforce the obligations of Mortgagee hereunder or under the Notes or the Credit
Agreement or any other instrument securing the performance of such obligations,
there shall be allowed and included as additional indebtedness in the decree for
sale or other judgment or decree all expenditures and expenses which may be paid
or incurred by or on behalf of Mortgagee for attorneys' costs and fees
(including the costs and fees of paralegals), survey charges, appraisers' fees,
inspecting engineers' and/or architects' fees, fees for environmental studies
and assessments and all additional expenses incurred by Mortgagee with respect
to environmental matters, outlays for documentary and expert evidence,
stenographers' charges, publication costs, and costs (which may be estimated as
to items to be expended after entry of the decree) of procuring all such
abstracts of title, title searches and examinations, title insurance policies,
Torrens certificates, and similar data and assurances with respect to title as
Mortgagee may deem reasonably necessary either to prosecute such suit or to
evidence to bidders at any sale which may be had pursuant to such decree the
true condition of the title to or the value of, or the environmental condition
of, the Mortgaged Property. All expenditures and expenses of the nature in this
paragraph mentioned, and such expenses and fees as may be incurred in the
protection of the Mortgaged Property and the maintenance of the lien of this
Mortgage, including the fees of any attorney employed by Mortgagee in any
litigation or proceeding affecting this Mortgage, the Notes or the Mortgaged
Property, including probate and bankruptcy proceedings, or in preparations for
the commencement or defense of any suit or proceeding or threatened suit or
proceeding, shall be immediately due and payable by Mortgagor, with interest
thereon at the highest default rate provided in the Notes and shall be secured
by this Mortgage.
4.04 Application of Proceeds of Foreclosure Sale. The proceeds of any
foreclosure sale of the Mortgaged Property shall be distributed and applied in
the following order of priority: First, on account of all costs and expenses
incident to the foreclosure proceedings, including all
such items as are mentioned in the preceding paragraph hereof; second, all other
items which under the terms hereof constitute secured indebtedness additional to
that evidenced by the Notes, with interest thereon as herein provided; third,
all principal and interest remaining unpaid on the Notes; fourth, any overplus
to Mortgagor, its successors or assigns, as their rights may appear.
4.05 Appointment of Receiver. Upon, or at any time after the filing of
a complaint to foreclose this Mortgage, Mortgagee shall be entitled to the
appointment of a receiver of the Mortgaged Property by the court in which such
complaint is filed, and Mortgagor hereby consents to such appointment. Such
appointment may be made either before or after sale, without notice, without
regard to the solvency or insolvency of Mortgagor at the time of application for
such receiver and without regard to the then value of the Mortgaged Property or
whether the same shall be then occupied as a homestead or not and Mortgagee or
any holder of the Notes may be appointed as such receiver. Such receiver shall
have power: (a) to collect the rents, issues and profits of the Mortgaged
Property during the pendency of such foreclosure suit and, in case of a sale and
a deficiency, during the full statutory period of redemption, whether there be
redemption or not, as well as during any further times when Mortgagor, except
for the intervention of such receiver, would be entitled to collect such rents,
issues and profits; (b) to extend or modify any then existing leases and to make
new leases, which extensions, modifications and new leases may provide for terms
to expire, or for options to lessees to extend or renew terms to expire, beyond
the maturity date of the indebtedness hereunder and beyond the date of the
issuance of a deed or deeds to a purchaser or purchasers at a foreclosure sale,
it being understood and agreed that any such leases, and the options or other
such provisions to be contained therein, shall be binding upon Mortgagor and all
persons whose interests in the premises are subject to the lien hereof and upon
the purchaser or purchasers at any foreclosure sale, notwithstanding any
redemption from sale, discharge of the mortgage indebtedness, satisfaction of
any foreclosure decree, or issuance of any certificate of sale or deed to any
purchaser; and (c) all other powers which may be necessary or are usual in such
cases for the protection, possession, control, management, and operation of the
premises during the whole of said period. The court from time to time may
authorize the receiver to apply the net income in his hands in payment in whole
or in part of: (a) the indebtedness secured hereby, or by any decree foreclosing
this mortgage, or any tax, special assessment or other lien which may be or
become superior to the lien hereof or of such decree, provided such application
is made prior to foreclosure sale; (b) the deficiency in case of a sale and
deficiency.
4.06 Remedies Not Exclusive. Mortgagee shall be entitled to enforce
payment and performance of any indebtedness or obligations secured hereby and to
exercise all rights and powers under this Mortgage or under any Credit
Instrument or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the said indebtedness and obligations secured
hereby may now or hereafter be otherwise secured, whether by mortgage, deed of
trust, pledge, lien, assignment or otherwise. Neither the acceptance of this
Mortgage nor its enforcement whether by court action or pursuant to the other
powers herein contained, shall prejudice or in any manner affect Mortgagee's
right to realize upon or enforce any other security now or hereafter held by
Mortgagee, it being agreed that Mortgagee shall be entitled to enforce this
Mortgage and any other security now or hereafter held by Mortgagee in such order
and manner as Mortgagee may, in its absolute discretion determine. No remedy
herein conferred upon or reserved to Mortgagee is intended to be exclusive of
any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. Every power or remedy given by any of the Loan Instruments
to Mortgagee may be exercised, concurrently or independently, from time to time
and as often as may be deemed expedient by Mortgagee and Mortgagee may pursue
inconsistent remedies.
Article 5. MISCELLANEOUS
5.01 Governing Law. This Mortgage shall be governed by the laws of the
State of Indiana. In the event that any provision or clause of any of the Loan
Instruments conflicts with applicable laws, such conflicts shall not affect
other provisions of such Loan Instruments which can be given effect without the
conflicting provision, and to this end the provisions of the Loan Instruments
are declared to be severable.
5.02 Mortgagor Waiver of Rights. To the extent permitted by law,
Mortgagor waives the benefit of all laws now existing or that hereafter may be
enacted providing for (i) any appraisement before sale of any portion of the
Mortgaged Property, and (ii) the benefit of all laws that may be hereafter
enacted in any way extending the time for the enforcement of the collection of
the Notes or the debt evidenced thereby or creating or extending a period of
redemption from any sale made in collecting said debt. To the full extent
Mortgagor may do so, Mortgagor agrees that Mortgagor will not at any time insist
upon, plead, claim or take the benefit or advantage of any law now or hereafter
in force providing for any appraisement, valuation, stay, extension or
redemption, and Mortgagor, for Mortgagor, Mortgagor's heirs, devisees,
representatives, successors and assigns, and for any and all persons ever
claiming any interest in the Mortgaged Property, to the extent permitted by law,
hereby waives and releases all rights of redemption, valuation, appraisement,
stay of execution, notice of election to mature or declare due the whole of the
secured indebtedness and marshaling in the event of foreclosure of the liens
hereby created. If any law referred to in this Section and now in force, of
which Mortgagor, Mortgagor's heirs, devisees, representatives, successors and
assigns or other person might take advantage despite this Section, shall
hereafter be repealed or cease to be in force, such law shall not thereafter be
deemed to preclude the application of this Section. Mortgagor expressly waives
and relinquishes any and all rights and remedies which Mortgagor may have or be
able to assert by reason of the laws of the State of Indiana pertaining to the
rights and remedies of sureties.
5.03 Limitation of Interest. It is the intent of Mortgagor and
Mortgagee in the execution of this Mortgage and the Notes and all other
instruments securing the Notes to contract in strict compliance with the usury
laws of the State of Indiana governing the loan evidenced by the Notes. In
furtherance thereof, Mortgagee and Mortgagor stipulate and agree that none of
the terms and provisions contained in the Loan Instruments shall ever be
construed to create a contract for the use, forbearance or detention of money
requiring payment of interest at a rate in excess of the maximum interest rate
permitted to be charged by the laws of the State of Indiana governing the loan
evidenced by the Notes. Mortgagor or any guarantor, endorser or other party now
or hereafter becoming liable for the payment of the Notes shall never be liable
for unearned interest on the Notes and shall never be required to pay interest
on the Notes at a rate in excess of the maximum rate of interest that may be
lawfully charged under the laws of the State of Indiana and the provisions of
this Section shall control over all other provisions of the Notes and any
other instrument executed in connection herewith which may be in apparent
conflict herewith. In the event any holder of the Notes shall collect monies
which are deemed to constitute interest in excess of the maximum rate permitted
by the laws of the State of Indiana, all such sums deemed to constitute interest
in excess of the maximum legal rate shall be immediately returned to the
Mortgagor upon such determination.
5.04 Statements by Mortgagor. Mortgagor, within ten (10) days after
being given notice by mail, will furnish to Mortgagee a written statement
stating the unpaid principal of and interest on the Notes and any other amounts
secured by this Mortgage and stating whether any offset or defense exists
against such principal and interest.
5.05 Notices. Whenever Mortgagee or Mortgagor shall desire to give or
serve any notice, demand, request or other communication with respect to this
Mortgage, each such notice, demand, request or other communication shall be in
writing and shall be effective only if the same is delivered by personal service
or mailed by registered or certified mail, postage prepaid, return receipt
requested, addressed to the address set forth at the beginning of this Mortgage.
Any party may at any time change its address for such notices by delivering or
mailing to the other parties hereto, as aforesaid, a notice of such change.
5.06 Captions. The captions or headings at the beginning of each
Section hereof are for the convenience of the parties and are not a part of this
Mortgage.
5.07 Invalidity of Certain Provisions. If the lien of this Mortgage is
invalid or unenforceable as to any part of the debt, or if the lien is invalid
or unenforceable as to any part of the Mortgaged Property, the unsecured or
partially secured portion of the debt shall be completely paid prior to the
payment of the remaining and secured or partially secured portion of the debt,
and all payments made on the debt, whether voluntary or under foreclosure or
other enforcement action or procedure, shall be considered to have been first
paid on and applied to the full payment of that portion of the debt which is not
secured or fully secured by the lien of this Mortgage.
5.08 No Merger. If both the Lessor's and Lessee's estates under any
lease or any portion thereof which constitutes a part of the Mortgaged Property
shall at any time become vested in one owner, this Mortgage and the lien created
hereby shall not be destroyed or terminated by application of the doctrine of
merger and, in such event, Mortgagee shall continue to have and enjoy all of the
rights and privileges of Mortgagee as to the separate estates. In addition, upon
the foreclosure of the lien created by this Mortgage on the Mortgaged Property
pursuant to the provisions hereof, any leases or subleases then existing and
created by Mortgagor shall not be destroyed or terminated by application of the
law of merger or as a matter of law or as a result of such foreclosure unless
Mortgagee or any purchaser at any such foreclosure sale shall so elect. No act
by or on behalf of Mortgagee or any such purchaser shall constitute a
termination of any lease or sublease unless Mortgagee or such purchaser shall
give written notice thereof to such tenant or subtenant.
5.09 Subrogation. To the extent that proceeds of the Notes are used to
pay any outstanding lien, charge or prior encumbrance against the Mortgaged
Property, such proceeds have been or will be advanced by Mortgagee at
Mortgagor's request and Mortgagee shall be subrogated to any and all rights and
liens owned or held by any owner or holder of such
outstanding liens, charges and prior encumbrances, irrespective of whether said
liens, charges or encumbrances are released.
5.10 Waiver and Amendment. This Mortgage may be modified or amended
only by an agreement in writing signed by Mortgagor and Mortgagee. No waiver of
any term or provision hereof shall be effective unless made in writing and
signed by the party against whom it is sought to be enforced. Any failure by
Mortgagee to insist upon strict performance by Mortgagor of any of the terms and
provisions of this Mortgage shall not be deemed to be a waiver of any of such
terms or provisions and Mortgagee shall have the right thereafter to insist upon
strict performance by Mortgagor of any and all of such terms and provisions.
5.11 Revolving Credit. This Mortgage secures, in part, the obligations
of Mortgagor under and pursuant to the revolving credit facility in the maximum
principal amount of Five Million Dollars ($5,000,000) evidenced by the Credit
Note, and it is expressly agreed that the lien of this Mortgage shall continue
despite the fact that the indebtedness evidenced by the Notes may, from time to
time, be fully paid, and despite that the aggregate amount of the advances
evidenced by the Notes may exceed the initial aggregate principal balance
secured by this Mortgage, and despite certain advances may be non-obligatory,
until the obligations of Mortgagee to make further advances under the Notes are
terminated and all the indebtedness and obligations secured hereby are fully and
finally paid or performed.
5.12 Fixture Filing. Mortgagor and Mortgagee agree that, as provided in
the Code, this Mortgage shall be effective from the date of its recording as a
fixture filing with respect to all goods constituting part of the Mortgaged
Property which are or are to become fixtures related to the real estate
described herein. For this purpose, the following information is set forth:
a. Name and Address of Debtor: Casting Technology Company 0000
Xxxxxxxxx Xxxxx Xxxxxxxx, Xxxxxxx 00000
b. Name and Address of Secured Party:
The Provident Bank
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
c. This document covers goods which are or are to become fixtures.
d. The real estate to which such fixtures are or are to be attached
is that described in Exhibit A attached hereto, the record owner
of which is Mortgagor.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the day
and year first above written.
"MORTGAGOR"
CASTING TECHNOLOGY COMPANY,
an Indiana general partnership
By AMCAST CASTING TECHNOLOGIES, INC.,
its general partner
By:_________________________________
Printed Name:_____________________
Title:____________________________
By IZUMI, INC.,
its general partner
By:_________________________________
Printed Name:______________________
Title:_____________________________
ACKNOWLEDGMENT
STATE OF INDIANA )
)SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally
appeared _____________________, known to me to be the ________________ of AMCAST
CASTING TECHNOLOGIES, INC., a general partner of CASTING TECHNOLOGY COMPANY, an
Indiana general partnership and acknowledged the execution of the foregoing Real
Estate Mortgage, Security Agreement and Fixture Filing for and on behalf of said
partnership.
Witness my hand and Notarial Seal, this ______ day of September, 2003.
-------------------------------
Notary Public - Signature
-------------------------------
Notary Public - Printed
My Commission Expires:
My County of Residence:
STATE OF INDIANA )
)SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally
appeared _____________________, known to me to be the ________________ of IZUMI,
INC., a general partner of CASTING TECHNOLOGY COMPANY, an Indiana general
partnership and acknowledged the execution of the foregoing Real Estate
Mortgage, Security Agreement and Fixture Filing for and on behalf of said
partnership.
Witness my hand and Notarial Seal, this ______ day of September, 2003.
___________________________
Notary Public - Signature
____________________________
Notary Public - Printed
My Commission Expires: My County of Residence:
This instrument prepared by Xxxxxxx X. Xxxx, Attorney At Law, XXXXXX &
XXXXXXXXX, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000.
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
DESCRIPTION OF PROPERTY
All tangible personal property now or hereafter owned by Mortgagor and used
or intended for use in constructing, furnishing, equipping and operating all
improvements located on the real estate described in Exhibit A attached hereto
(the "Property"), as the same may be completed or enlarged from time to time,
including, without limiting the generality of the foregoing, any and all
buildings and improvements now or hereafter erected thereon, including, but not
limited to, building materials and supplies stored on the Property, fixtures,
attachments, appliances, equipment, machinery and other articles attached to
said buildings and improvements (the "Improvements"), including all goods,
machinery, tools, insurance proceeds, equipment (including fire sprinklers and
alarm systems, office air conditioning, heating, refrigerating, electronic
monitoring, entertainment, recreational, window or structural cleaning rigs,
maintenance equipment, exclusion of vermin or insects, removal of dust, refuse
or garbage, and all other equipment of every kind), lobby and all other indoor
and outdoor furniture (including tables, chairs, planters, desks, sofas,
shelves, lockers and cabinets), wall beds, wall safes, furnishings, appliances
(including ice boxes, refrigerators, fans, heaters, stoves, water heaters and
incinerators), rugs, carpets and other floor coverings, draperies and drapery
rods and brackets, awnings, window shades, venetian blinds, curtains, lamps,
chandeliers and other lighting fixtures and office maintenance and other
supplies (hereinafter collectively called the "Personal Property"); and
All estate, interest, right, title and any other demand or claim, which
Mortgagor now has or may hereafter acquire in any plans and specifications,
construction contracts, construction management agreements, material purchase
agreements, builder's and manufacturer's warranties and insurance proceeds with
respect to the Property, the Improvements or the Personal Property, and any and
all awards made for the taking by eminent domain, or by any proceeding or
purchase in lieu thereof, of the whole or any part of the Property, the Personal
Property or the Improvements, including, without limitation, any awards
resulting from a change of grade of streets and awards for severance damages;
together with all rents, issues, profits, royalties, income and other benefits
derived from the Property, (collectively the "Rents"), subject to the right,
power and authority given to Mortgagor to collect and apply such Rents; together
with all leasehold estate, right, title and interest of Mortgagor in and to all
leases or subleases covering the Property and/or the Improvements or any portion
thereof now or hereafter existing or entered into, and all right, title and
interest of Mortgagor thereunder, including, without limitation, all cash or
security deposits, advance rentals, and deposits or payments of similar nature;
together with all right, title and interest of Mortgagor in and to all options
to purchase or lease the Property and/or the Improvements or any portion thereof
or interest therein, and any greater estate in the Property and/or the
Improvements owned or hereafter acquired; together with all interests, estate or
other claims, both in law and in equity, which Mortgagor now has or may
hereafter acquire in the Property and/or the Improvements.
EXHIBIT C
PERMITTED EXCEPTIONS
1. The lien for real estate taxes not yet due and payable.
2. Easement granted to United Telephone Company of Indiana by
instrument dated May 3, 1996 and recorded June 13, 1996 as
Instrument Number 96-12844, as shown on the survey by Xxxxx X.
Xxxxxxxxx of Benchmark Surveying, Inc. last certified September
10, 2003 as Project No. 1-18860 (the "Survey").
3. Permanent Easement for Roadway granted to the City of Franklin,
State of Indiana, by instrument dated March 2, 1994, and recorded
March 17, 19943, as Instrument No. 94-006475, in Book 275 at page
612, as shown on the Survey.
