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EXHIBIT 4.10
MORTGAGE, SECURITY AGREEMENT,
FINANCING STATEMENT AND
ASSIGNMENT OF RENTS AND LEASES
THIS MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT AND
ASSIGNMENT OF RENTS AND LEASES ("Mortgage") entered into as of the ____ day of
November, 2000, by PINNACLE PRODUCTS, INC., a Wisconsin corporation
("Mortgagor") having its principal office at 00000 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000 in favor of ABN AMRO BANK N.V. ("Mortgagee"), having its
principal office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, as
contractual representative for its benefit and for the benefit of the "Holders
of Secured Obligations" as defined in that certain Credit Agreement (as amended,
restated, modified, supplemented or substituted from time to time, the "Credit
Agreement"), dated as of November 28, 2000, by and among Ormco Corporation, a
Delaware corporation ("Ormco"), Sybron Dental Management, Inc., a Delaware
corporation ("SDM"), Xxxx Corporation, a Delaware corporation ("Xxxx"), the
Subsidiary Swing Line Borrowers from time to time parties thereto (together
jointly with Ormco, SDM and Xxxx, the "Borrowers"), Sybron Dental Specialties,
Inc., a Delaware corporation, as the Parent, The Chase Manhattan Bank, as
Syndication Agent, First Union National Bank, as Documentation Agent,
Beneficiary and the institutions from time to time parties thereto as Lenders.
The term "Holders of Secured Obligations" shall include those who are, and those
who may hereafter become, parties to the Credit Agreement in such capacity.
Except as otherwise provided herein, all capitalized terms used but not defined
herein shall have the respective meanings given to them in the Credit Agreement.
WITNESSETH:
WHEREAS, pursuant to and upon satisfaction of the conditions
set forth in the Credit Agreement, the Mortgagee and Lenders have agreed to make
certain Term Loans and Revolving Loans to the Borrowers, and Mortgagee and
Lenders have agreed to extend certain other financial accommodations from time
to time to Borrowers, all in an aggregate principal amount not to exceed Four
Hundred Fifty Million and no/100 Dollars ($450,000,000.00); and
WHEREAS, Mortgagor is a Subsidiary of SDM, one of the
Borrowers and will derive direct and indirect economic benefit from the Loans
and financial accommodations, and
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Mortgagor has executed and delivered to Mortgagee for the benefit of the Lenders
and the Holders of the Secured Obligations, a certain Subsidiary Guaranty, dated
as of even date
herewith (as amended from time to time, the "Guaranty"), pursuant to which
Mortgagor has guaranteed the payment and performance of the Obligations
described in the Credit Agreement; and
WHEREAS, as a condition to Mortgagee and Lenders' extension of
such financial accommodations to the Borrowers including, without limitation,
the extension of Credit pursuant to the Credit Agreement, Mortgagee and Lenders
have required that Mortgagor enter into this Mortgage and grant to Mortgagee for
the benefit of the Lenders and the Holders of the Secured Obligations, the liens
and security interests referred to herein to secure (i) prompt and complete
payment and performance of all of Mortgagor's obligations under the Guaranty;
(ii) the payment of the principal amount of the Loans, together with interest
thereon; (iii) payment of all Reimbursement Obligations; (iv) payment of the
principal amount, together with interest thereon, of all present and future
advances of money made by Mortgagee or Lenders to Borrowers, or any of them,
including, without limitation, the reborrowing of principal previously repaid
pursuant to the Credit Agreement, as well as all other Secured Obligations of
Borrowers, or any of them, to Mortgagee or Holders of Secured Obligations; and
(v) other payment and performance obligations under this Mortgage (the aforesaid
Secured Obligations of Borrowers, or any of them, to Mortgagee or Lenders, plus
interest and other payment and performance obligations being hereinafter
referred to collectively as the "Liabilities");
WHEREAS, the Liabilities secured hereby shall not exceed an
aggregate principal amount, at any one time outstanding of One Million Thirty
Thousand and no/100 Dollars ($1,030,000.00), plus accrued interest thereon and
applicable thereto, any advances made by Mortgagee to protect the security
hereof, interest on such advances and attorneys' fees and legal costs as stated
herein; provided, that the foregoing limitation shall apply only to the lien
upon the real property created by this Mortgage, and it shall not in any manner
limit, affect or impair any grant of a security interest or other right in favor
of the Mortgagee under the provisions of the Credit Agreement or under any other
security agreement at any time executed by Mortgagor; and provided further, that
notwithstanding anything to the contrary herein, enforcement of this Mortgage in
Minnesota is limited to a principal debt amount of One Million Thirty Thousand
and no/100 Dollars ($1,030,000.00) under Chapter 287 of Minnesota Statutes;
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NOW, THEREFORE, in consideration of the premises contained
herein and to secure payment of the Liabilities and in consideration of One
Dollar ($1.00) in hand paid, the receipt and sufficiency whereof are hereby
acknowledged, Mortgagor does hereby grant, remise, release, alien, convey,
mortgage and warrant to Mortgagee, its successors and assigns, the following
described real estate (the "Land") in Dakota County, Minnesota, and does further
grant a security interest to Mortgagee in all Mortgaged Property (as defined
below) as may be secured under the Uniform Commercial Code (the "Code") in
effect in the State of Minnesota (the "State"):
See Exhibit A attached hereto and by this reference made a
part hereof for the legal description of the Land
which Land, together with all right, title and interest, if any, which Mortgagor
may now have or hereafter acquire in and to all improvements, buildings and
structures now or hereafter located thereon of every nature whatsoever, is
herein called the "Premises."
TOGETHER WITH all right, title and interest, if any, including
any after-acquired right, title and interest, and including any right of use or
occupancy, which Mortgagor may now have or hereafter acquire in and to (a) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and
public places adjoining said Land, and any other interests in property
constituting appurtenances to the Premises, or which hereafter shall in any way
belong, relate or be appurtenant thereto, and (b) all hereditaments, gas, oil,
minerals (with the right to extract, sever and remove such gas, oil and
minerals), and easements, of every nature whatsoever, located in or on the
Premises and all other rights and privileges thereunto belonging or appertaining
and all extensions, additions, improvements, betterments, renewals,
substitutions and replacements to or of any of the rights and interests
described in subparagraphs (a) and (b) above (hereinafter the "Property
Rights").
TOGETHER WITH all right, title and interest, if any, including
any after-acquired right, title and interest, and including any right of use or
occupancy, which Mortgagor may now or hereafter acquire in and to all fixtures
and appurtenances of every nature whatsoever now or hereafter located in, on or
attached to, and used or intended to be used in connection with, or with the
operation of, the Premises, including, but not limited to (a) all apparatus,
machinery and equipment of Mortgagor; and (b) all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to or of any
of the foregoing (the items described in the foregoing (a) and (b) being the
"Fixtures"). It is mutually agreed, intended and declared that the Premises and
all of the Property Rights and Fixtures owned by Mortgagor (referred to
collectively herein as the "Real Property") shall, so far as permitted by law,
be deemed to form a part and parcel of the Land and for the purpose of this
Mortgage to be real estate and covered by this Mortgage. It is also agreed that
if any of the property herein mortgaged is of a nature so that a security
interest therein can be perfected under the Code in effect in the State, to the
extent permitted by applicable law this instrument shall constitute a security
agreement, fixture filing and financing statement, and Mortgagor agrees to
execute, deliver and file or refile any financing statement, continuation
statement, or other instruments Mortgagee may reasonably require from
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time to time to perfect or renew such security interest under the Code. To the
extent permitted by law, (i) all of the Fixtures are or are to become fixtures
on the Land; and (ii) this instrument, upon recording or registration in the
real estate records of the proper office, shall constitute a "fixture-filing"
within the meaning of Sections 9-313 and 9-402 of the Code. Subject to the terms
and conditions of the Credit Agreement, the remedies for any violation of the
covenants, terms and conditions of the agreements herein contained shall be as
prescribed herein or by general law, or, as to that part of the security in
which a security interest may be perfected under the Code, by the specific
statutory consequences now or hereafter enacted and specified in the Code, all
at the Mortgagee's sole election. The Mortgagee shall have any and all rights
and remedies (including, without limitation, extrajudicial power of sale)
provided to a secured party by the Uniform Commercial Code with respect to any
and all parts of the Mortgaged Property which are and which are deemed to be
governed by the Uniform Commercial Code. Without limiting the generality of the
foregoing, the Mortgagee shall, with respect to any part of the Mortgaged
Property constituting property of the type in respect of which realization on a
lien or security interest granted therein is governed by the Uniform Commercial
Code, have all the rights, options and remedies of a secured party under the
Uniform Commercial Code, including, without limitation, the right to the
possession of any such property, or any part thereof, and the right to enter
without legal process any premises where any such property may be located or
stored. Any notification requirement shall be satisfied by mailing written
notice to the Mortgagor at its address set forth herein at least 10 days prior
to the sale or other event for which such notice is required.
TOGETHER WITH all the estate, right, title and interest of the
Mortgagor in and to (i) all judgments, insurance proceeds, awards of damages and
settlements resulting from condemnation proceedings or the taking of the Real
Property, or any part thereof, under the power of eminent domain or for any
damage (whether caused by such taking or otherwise) to the Real Property, or any
part thereof, or to any rights appurtenant thereto, and all proceeds of any
sales or other dispositions of the Real Property or any part thereof; and
(except as otherwise provided herein or in the Credit Agreement) the Mortgagee
is hereby authorized to collect and receive said awards and proceeds and to give
proper receipts and acquittances therefor, and to apply the same as provided in
the Credit Agreement; and (ii) all contract rights, general intangibles, actions
and rights in action relating to the Real Property including, without
limitation, all rights to insurance proceeds and unearned premiums arising from
or relating to damage to the Real Property; and (iii) all proceeds, products,
replacements, additions, substitutions, renewals and accessions of and to the
Real Property. (The rights and interests described in this paragraph shall
hereinafter be called the "Intangibles.")
As additional security for the Liabilities secured hereby,
Mortgagor (i) does hereby pledge and assign to Mortgagee from and after the date
hereof (including any period of redemption), primarily and on a parity with the
Real Property, and not secondarily, all the rents, issues and profits of the
Real Property and all rents, issues, profits, revenues, royalties, bonuses,
rights and benefits due, payable or accruing (including all deposits of money as
advance rent, for security or as xxxxxxx money or as down payment for the
purchase of all or any part of the Real Property) (the "Rents") under any and
all present and future leases, contracts or other agreements relative to the
ownership or occupancy of all or any portion of the Real Property, and (ii)
except
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to the extent such a transfer or assignment is not permitted by the terms
thereof, does hereby transfer and assign to Mortgagee all such leases and
agreements (including all Mortgagor's rights under any contracts for the sale of
any portion of the Mortgaged Property and all revenues and royalties under any
oil, gas and mineral leases relating to the Real Property) (the "Leases").
Mortgagee hereby grants to Mortgagor the right to collect and use the Rents as
they become due and payable under the Leases, but not more than one (1) month in
advance thereof, unless an Event of Default (as hereinafter defined) shall have
occurred; provided that the existence of such right shall not operate to
subordinate this assignment to any subsequent assignment, in whole or in part,
by Mortgagor, and any such subsequent assignment shall be subject to the rights
of the Mortgagee under this Mortgage. Mortgagor further agrees to execute and
deliver such assignments of leases or assignments of land sale contracts as
Mortgagee may from time to time request. In the event of an Event of Default (1)
the Mortgagor agrees, upon demand, to deliver to the Mortgagee all of the Leases
with such additional assignments thereof as the Mortgagee may request and agrees
that the Mortgagee may assume the management of the Real Property and collect
the Rents, applying the same upon the Liabilities in the manner provided in the
Credit Agreement, and (2) the Mortgagor hereby authorizes and directs all
tenants, purchasers or other persons occupying or otherwise acquiring any
interest in any part of the Real Property to pay the Rents due under the Leases
to the Mortgagee upon request of the Mortgagee. Mortgagor hereby appoints
Mortgagee as its true and lawful attorney in fact to manage said property and
collect the Rents, with full power to bring suit for collection of the Rents and
possession of the Real Property, giving and granting unto said Mortgagee and
unto its agent or attorney full power and authority to do and perform all and
every act and thing whatsoever requisite and necessary to be done in the
protection of the security hereby conveyed; provided, however, that (i) this
power of attorney and assignment of rents shall not be construed as an
obligation upon said Mortgagee to make or cause to be made any repairs that may
be needful or necessary and (ii) Mortgagee agrees that until such Event of
Default as aforesaid, Mortgagee shall permit Mortgagor to perform the
aforementioned management responsibilities. Upon Mortgagee's receipt of the
Rents, at Mortgagee's option, it may use the proceeds of the Rents to pay: (1)
reasonable charges for collection thereof, costs of necessary repairs and other
costs requisite and necessary during the continuance of this power of attorney
and assignment of rents, (2) general and special taxes, insurance premiums, and
(3) the balance of the Rents pursuant to the provisions of the Credit Agreement.
This power of attorney and assignment of rents shall be irrevocable until this
Mortgage shall have been satisfied and released of record and the releasing of
this Mortgage shall act as a revocation of this power of attorney and assignment
of rents. Mortgagee shall have and hereby expressly reserves the right and
privilege (but assumes no obligation) to demand, collect, xxx for, receive and
recover the Rents, or any part thereof, now existing or hereafter made, and
apply the same in accordance with the provisions of the Credit Agreement. It is
also agreed that, in addition to the rights which Mortgagee may have under this
Mortgage, whenever a Default is outstanding, Mortgagee may perfect and activate
its right to demand, collect, receive and apply the Rents as set forth above by
exercising one or more of the following: (i) delivering a written notice to
Mortgagor invoking Mortgagee's right to receive and apply the Rents pursuant to
this Mortgage; (ii) taking actual possession of the Real Property; (iii)
delivering a written notice, to the tenants, purchasers or other persons
occupying or otherwise acquiring any interest in any part of the Real Property,
demanding that all Rents be paid directly to Mortgagee; (iv) moving or applying
for the appointment of a receiver; (v) filing or commencing an action to
foreclose this
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Mortgage; or (vi) exercising any other right or remedy set forth in this
Mortgage or the Credit Agreement.
All of the property described above, and each item of property
therein described, not limited to but including the Land, the Premises, the
Property Rights, the Fixtures, the Personal Property, the Real Property, the
Intangibles, the Rents and the Leases, is herein referred to as the "Mortgaged
Property."
Nothing herein contained shall be construed as constituting
the Mortgagee a mortgagee-in-possession in the absence of the taking of actual
possession of the Mortgaged Property by the Mortgagee. Nothing contained in this
Mortgage shall be construed as imposing on Mortgagee any of the obligations of
the lessor under any lease of the Mortgaged Property in the absence of an
explicit assumption thereof by Mortgagee. In the exercise of the powers herein
granted the Mortgagee, except as provided in the Credit Agreement, no liability
shall be asserted or enforced against the Mortgagee, all such liability being
expressly waived and released by Mortgagor.
TO HAVE AND TO HOLD the Mortgaged Property, properties, rights
and privileges hereby conveyed or assigned, or intended so to be, unto
Mortgagee, its beneficiaries, successors and assigns, forever for the uses and
purposes herein set forth. Mortgagor hereby releases and waives all rights under
and by virtue of the homestead exemption laws, if any, of the State and
Mortgagor hereby covenants, represents and warrants that, at the time of the
ensealing and delivery of these presents, Mortgagor is well seized of the
Mortgaged Property in fee simple and with lawful authority to sell, assign,
convey and mortgage the Mortgaged Property, and that the title to the Mortgaged
Property is free and clear of all encumbrances, except as described on Exhibit B
attached hereto and made a part hereof, and that, except for the encumbrances
set forth on Exhibit B, Mortgagor will forever defend the same against all
lawful claims.
The following provisions shall also constitute an integral
part of this Mortgage:
1. Payment of Taxes on the Mortgage. Without limiting any of
the provisions of the Credit Agreement, Mortgagor agrees that, if the United
States or any department, agency or bureau thereof or if the State or any of its
subdivisions having jurisdiction shall at any time require documentary stamps to
be affixed to this Mortgage or shall levy, assess, or charge any tax, assessment
or imposition upon this Mortgage or the credit or indebtedness secured hereby or
the interest of Mortgagee in the Premises or upon Mortgagee or the Lenders by
reason of or as holder of any of the foregoing, then, Mortgagor shall pay for
such documentary stamps in the required amount and deliver them to Mortgagee or
pay (or reimburse Mortgagee or the Lenders for) such taxes, assessments or
impositions. Mortgagor agrees to exhibit to Mortgagee, at any time upon request,
official receipts showing payment of all taxes, assessments and charges which
Mortgagor is required or elects to pay under this paragraph. Mortgagor agrees to
indemnify Mortgagee against liability on account of such documentary stamps,
taxes, assessments or impositions, whether such liability arises before or after
payment of the Liabilities and regardless of whether this Mortgage shall have
been released.
2. Leases Affecting the Real Property. Mortgagor agrees
faithfully to perform all of
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its obligations under all present and future Leases at any time assigned to
Mortgagee as additional security, and to refrain from any action or inaction
which would result in termination of any such Leases, or in the diminution of
the value thereof or of the Rents due thereunder. All future lessees under any
Lease made after the date of recording of this Mortgage shall, at Mortgagee's
option and without any further documentation, attorn to Mortgagee as lessor if
for any reason Mortgagee becomes lessor thereunder, and, upon demand, pay rent
to Mortgagee, and Mortgagee shall not be responsible under such Lease for
matters arising prior to Mortgagee becoming lessor thereunder.
3. Use of the Real Property. Mortgagor agrees that it shall
not permit the public to use the Real Property in any manner that might tend, in
Mortgagee's reasonable judgment, to impair Mortgagor's title to such property or
any portion thereof, or to make possible any claim or claims of easement by
prescription or of implied dedication to public use. Mortgagor shall not use or
permit the use of any part of the Real Property for an illegal purpose,
including, without limitation, the violation of any environmental laws,
statutes, codes, regulations or practices.
4. Indemnification. Without limiting any indemnification
Mortgagor has granted in the Credit Agreement, Mortgagor agrees to indemnify and
hold harmless Mortgagee from and against any and all losses, suits, liabilities,
fines, damages, judgments, penalties, claims, charges, costs and expenses
(including reasonable attorneys' and paralegals' fees, court costs and
disbursements) which may be imposed on, incurred or paid by or asserted against
the Real Property by reason or on account of or in connection with (i) the
construction, reconstruction or alteration of the Real Property, (ii) any
negligence or misconduct of Mortgagor, any lessee of the Real Property, or any
of their respective agents, contractors, subcontractors, servants, employees,
licensees or invitees, (iii) any accident, injury, death or damage to any person
or property occurring in, on or about the Real Property or any street, drive,
sidewalk, curb or passageway adjacent thereto, or (iv) any other transaction
arising out of or in any way connected with the Mortgaged Property.
5. Insurance. Mortgagor shall, at its sole expense, obtain
for, deliver to, assign and maintain for the benefit of Mortgagee, until the
Liabilities are paid in full, insurance policies as specified in the Credit
Agreement. In the event of a casualty loss, the net insurance proceeds from such
insurance policies shall be paid and applied as specified in the Credit
Agreement.
6. Condemnation Awards. Mortgagor hereby assigns to Mortgagee,
as additional security, all awards of damage resulting from condemnation
proceedings or the taking of or injury to the Real Property for public use, and
Mortgagor agrees that the proceeds of all such awards shall be paid and applied
as specified in the Credit Agreement.
7. Remedies of Mortgagee. Subject to the provisions of the
Credit Agreement, upon the occurrence of a Default under the terms of the Credit
Agreement ("Event of Default"), in addition to any rights and remedies provided
for in the Credit Agreement, and to the extent permitted by applicable law, the
following provisions shall apply:
(a) Mortgagee's Power of Enforcement. It shall be lawful for
Mortgagee to (i) immediately sell the Mortgaged Property either in whole or in
separate parcels, as prescribed
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by the State law, under power of sale, which power is hereby granted to
Mortgagee to the full extent permitted by the State law, and thereupon, to make
and execute to any purchaser(s) thereof deeds of conveyance pursuant to
applicable law or (ii) immediately foreclose this Mortgage by judicial action.
The court in which any proceeding is pending for the purpose of foreclosure of
this Mortgage may, at once or at any time thereafter, either before or after
sale, without notice and without requiring bond, and without regard to the
solvency or insolvency of any person liable for payment of the Liabilities
secured hereby, and without regard to the then value of the Mortgaged Property
or the occupancy thereof as a homestead, appoint a receiver (the provisions for
the appointment of a receiver and assignment of rents being an express condition
upon which the Loan hereby secured is made) for the benefit of Mortgagee, with
power to collect the Rents, due and to become due, during such foreclosure suit
and the full statutory period of redemption notwithstanding any redemption. The
receiver, out of the Rents when collected, may pay costs incurred in the
management and operation of the Real Property, prior and subordinate liens, if
any, and taxes, assessments, water and other utilities and insurance, then due
or thereafter accruing, and may make and pay for any necessary repairs to the
Real Property, and may pay all or any part of the Liabilities or other sums
secured hereby or any deficiency decree entered in such foreclosure proceedings.
Upon or at any time after the filing of a suit to foreclose this Mortgage, the
court in which such suit is filed shall have full power to enter an order
placing Mortgagee in possession of the Real Property with the same power granted
to a receiver pursuant to this subparagraph.
(b) Mortgagee's Right to Enter and Take Possession, Operate
and Apply Income. Mortgagee shall, at its option, have the right, acting through
its agents or attorneys, either with or without process of law, forcibly or
otherwise, to enter upon and take possession of the Real Property, expel and
remove any persons, goods, or chattels occupying or upon the same, to collect or
receive all the Rents, and to manage and control the same, and to lease the same
or any part thereof, from time to time, and, after deducting all reasonable
attorneys' fees and expenses, and all reasonable expenses incurred in the
protection, care, maintenance, management and operation of the Real Property,
distribute and apply the remaining net income in accordance with the terms of
the Credit Agreement or upon any deficiency decree entered in any foreclosure
proceedings.
(c) Assignment of Rents and Leases, Receiver. The Mortgagee's
rights and remedies hereunder upon the occurrence of a Default shall include,
without limitation, the fullest range and benefit of the rights and remedies
made available to a Mortgagee pursuant to Minn. Stat. Section 576.0l and Minn.
Stat. Section 559.17, as said statutes may be amended from time to time. In the
event that Mortgagee elects to exercise its remedies under said statutes, or any
of said remedies, the terms and provisions of said statutes, as amended,
governing the exercise of said remedies shall govern, control and take
precedence over any contrary terms contained in this Mortgage. The exercise by
Mortgagee of the statutory remedies referenced in this paragraph shall not
constitute Mortgagee a "mortgagee-in-possession" under Minnesota law, or give
rise to any liability which might otherwise attach to Mortgagee as a
mortgagee-in-possession.
(d) Remedies of Mortgagee, Mortgage Foreclosure. Mortgagor
does hereby grant and confer upon Mortgagee the fullest rights and remedies
available for foreclosure of this Mortgage
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by action or by advertisement pursuant to Minn. Stat. Chapters 580, 581 and 582,
as said statutes may be amended from time to time, and pursuant to other
applicable Minnesota laws and statutes, as amended, governing and authorizing
mortgage foreclosures by action and by advertisement; and the power of sale
granted Mortgagee in this Mortgage shall include, without limitation, the power
of sale required to permit, at Mortgagee's option, lawful foreclosure of this
Mortgage by advertisement in accordance with the statutes then made and
provided.
8. Application of the Rents or Proceeds from Foreclosure or
Sale. In any foreclosure of this Mortgage by judicial action, or any sale of the
Mortgaged Property by advertisement, in addition to any of the terms and
provisions of the Credit Agreement, there shall be allowed (and included in the
decree for sale in the event of a foreclosure by judicial action) to be paid out
of the Rents or the proceeds of such foreclosure proceeding and/or sale:
(a) Liabilities. All of the Liabilities and other sums secured
hereby which then remain unpaid; and
(b) Other Advances. All other items advanced or paid by
Mortgagee pursuant to this Mortgage; and
(c) Costs, Fees and Other Expenses. All court costs,
reasonable attorneys' and paralegals' fees and expenses, appraiser's fees,
advertising costs, filing fees and transfer taxes, notice expenses, expenditures
for documentary and expert evidence, stenographer's charges, publication costs,
and costs (which may be estimated as to items to be expended after entry of the
decree) of procuring all abstracts of title, title searches and examinations,
title guarantees, title insurance policies, Torrens certificates and similar
data with respect to title which Mortgagee in the reasonable exercise of its
judgment may deem necessary. All such expenses shall become additional
Liabilities secured hereby when paid or incurred by Mortgagee in connection with
any proceedings, including but not limited to probate and bankruptcy
proceedings, to which Mortgagee shall be a party, either as plaintiff, claimant
or defendant, by reason of this Mortgage or any indebtedness hereby secured or
in connection with the preparations for the commencement of any suit for the
foreclosure, whether or not actually commenced, or sale by advertisement. The
proceeds of any sale (whether through a foreclosure proceeding or Mortgagee's
exercise of the power of sale) shall be distributed and applied in accordance
with the terms of the Credit Agreement.
9. Cumulative Remedies; Delay or Omission Not a Waiver. Each
remedy or right of Mortgagee shall not be exclusive of but shall be in addition
to every other remedy or right now or hereafter existing at law or in equity. No
delay in the exercise or omission to exercise any remedy or right accruing on
the occurrence or existence of any Event of Default shall impair any such remedy
or right or be construed to be a waiver of any such Event of Default or
acquiescence therein, nor shall it affect any subsequent Event of Default of the
same or different nature. Every such remedy or right may be exercised
concurrently or independently and when and as often as may be deemed expedient
by Mortgagee.
10. Mortgagee's Remedies against Multiple Parcels. If more
than one property, lot or parcel is covered by this Mortgage, and if this
Mortgage is foreclosed upon, or judgment is
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entered upon any Liabilities secured hereby, or if Mortgagee exercises its power
of sale, execution may be made upon or Mortgagee may exercise its power of sale
against any one or more of the properties, lots or parcels and not upon the
others, or upon all of such properties or parcels, either together or
separately, and at different times or at the same time, and execution sales or
sales by advertisement may likewise be conducted separately or concurrently, in
each case at Mortgagee's election.
11. No Merger. In the event of a foreclosure of this Mortgage
or any other mortgage or deed of trust securing the Liabilities, the Liabilities
then due the Mortgagee shall not be merged into any decree of foreclosure
entered by the court, and, Mortgagee may concurrently or subsequently seek to
foreclose one or more mortgages or deeds of trust which also secure said
Liabilities.
12. Notices. All notices and other communications provided to
any party hereto under this Deed shall be in writing or by telex or by facsimile
and addressed or delivered to such party at its address set forth below or at
such other address as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid,
shall be deemed given when received; any notice, if transmitted by telex or
facsimile, shall be deemed given when transmitted (answerback confirmed in the
case of telexes).
if to Mortgagor:
Pinnacle Products, Inc.
c/o Sybron Dental Management, Inc.
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer/Vice President-Finance
Telecopy No.: 714/516-7696
with a copy to:
Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Telecopy No.: 414/271-3552
if to Mortgagee:
ABN AMRO BANK N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxx
Telecopy No.: 312/606-8425
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with a copy to:
Sidley & Austin
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx
Telecopy No.: 312/853-7036
13. Extension of Payments. Mortgagor agrees that, without
affecting the liability of any person for payment of the Liabilities secured
hereby or affecting the lien of this Mortgage upon the Mortgaged Property or any
part thereof (other than persons or property explicitly released as a result of
the exercise by Mortgagee of its rights and privileges hereunder), Mortgagee may
at any time and from time to time, on request of the Mortgagor, without notice
to any person liable for payment of any Liabilities secured hereby, but
otherwise subject to the provisions of the Credit Agreement, extend the time, or
agree to alter or amend the terms of payment of such Liabilities. Mortgagor
further agrees that any part of the security herein described may be released
with or without consideration without affecting the remainder of the Liabilities
or the remainder of the security.
14. Governing Law. Mortgagor agrees that this Mortgage, the
Credit Agreement, the Note and all other related documents are to be construed,
governed and enforced in accordance with the laws of the State. Wherever
possible, each provision of this Mortgage shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Mortgage shall be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Mortgage.
15. Satisfaction of Mortgage. Upon full payment of all the
Liabilities, at the time and in the manner provided in the Credit Agreement, or
upon satisfaction of the conditions set forth in the Credit Agreement for
release of the Mortgaged Property from this Mortgage, this conveyance or lien
shall be null and void and, upon demand therefor following such payment or
satisfaction of the conditions set forth in the Credit Agreement for release of
the Mortgaged Property, as the case may be, a satisfaction of mortgage shall
promptly be provided by Mortgagee to Mortgagor.
16. Successors and Assigns Included in Parties. This Mortgage
shall be binding upon the Mortgagor and upon the successors, assigns and vendees
of the Mortgagor and shall inure to the benefit of the Mortgagee's successors
and assigns; all references herein to the Mortgagor and to the Mortgagee shall
be deemed to include their respective successors and assigns. Mortgagor's
successors and assigns shall include, without limitation, a receiver, trustee or
debtor in possession of or for the Mortgagor. Wherever used, the singular number
shall include the plural, the plural shall include the singular, and the use of
any gender shall be applicable to all genders.
17. Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws.
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Mortgagor agrees, to the full extent permitted by law, that at all times
following a Default, neither Mortgagor nor anyone claiming through or under it
shall or will set up, claim or seek to take advantage of any appraisement,
valuation, stay, or extension laws now or hereafter in force, in order to
prevent or hinder the enforcement or foreclosure of this Mortgage or the
absolute sale of the Mortgaged Property or the final and absolute putting into
possession thereof, immediately after such sale, of the purchaser thereat; and
Mortgagor, for itself and all who may at any time claim through or under it,
hereby waives, to the full extent that it may lawfully so do, the benefit of all
such laws and any and all right to have the assets comprising the Mortgaged
Property marshaled upon any foreclosure of the lien hereof and agrees that
Mortgagee or any court having jurisdiction to foreclose such lien may sell the
Mortgaged Property in part or as an entirety. To the full extent permitted by
law, Mortgagor hereby waives any and all statutory or other rights of redemption
from sale under any order or decree of foreclosure of this Mortgage, on its own
behalf and on behalf of each and every person acquiring any interest in or title
to the Mortgaged Property subsequent to the date hereof.
18. Interpretation with Other Documents. Notwithstanding
anything in this Mortgage to the contrary, in the event of a conflict or
inconsistency between the Mortgage and the Credit Agreement, excepting those
provisions of the Mortgage relating to its enforcement, the provisions of the
Credit Agreement shall govern.
19. Invalid Provisions to Affect No Others. In the event that
any of the covenants, agreements, terms or provisions contained in this Mortgage
shall be invalid, illegal or unenforceable in any respect, the validity of the
remaining covenants, agreements, terms or provisions contained herein or in the
Credit Agreement shall not be in any way affected, prejudiced or disturbed
thereby. In the event that the application of any of the covenants, agreements,
terms or provisions of this Mortgage is held to be invalid, illegal or
unenforceable, those covenants, agreements, terms and provisions shall not be in
any way affected, prejudiced or disturbed when otherwise applied.
20. Changes. Neither this Mortgage nor any term hereof may be
changed, waived, discharged or terminated orally, or by any action or inaction,
but only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought. To the
extent permitted by law, any agreement hereafter made by Mortgagor and Mortgagee
relating to this Mortgage shall be superior to the rights of the holder of any
intervening lien or encumbrance.
21. Revolving Credit Loans. A portion of the Liabilities
constitutes a revolving credit loan as more specifically provided and identified
in the Credit Agreement, and it is anticipated that certain advances, payments
and readvances may be made from time to time with respect to such obligations.
The maximum principal amount of such obligations which may be secured by this
Mortgage at any one time is $1,030,000.00, and a portion of the mortgage
registry tax paid for this Mortgage has been paid on the basis of said amount in
accordance with the provisions of Minn. Stat. Section 287.05, Subd. 3. The
parties agree, and mutually intend that a reduction to zero of amounts due and
outstanding with respect to the revolving credit loan shall not constitute an
extinguishment of the debt secured hereby or of any component debt secured
hereby, unless and
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until a satisfaction or release of this Mortgage is executed by Mortgagee and
delivered to Mortgagor. If, after such reduction to zero, subsequent readvances
are made, the subsequent readvances so made shall not constitute a new debt, and
shall constitute a continuation of the original revolving credit loans.
22. Final Maturity Date. Payment of the Liabilities secured by
this Mortgage shall be due on or before November 28, 2007, or such later date as
may be agreed in writing signed by Mortgagor and Mortgagee.
23. Fixture Financing Statement. This Mortgage covers goods
which are or are to become fixtures.
The name and address of the Mortgagor (debtor) is:
Pinnacle Products Inc.
00000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
E.I.N. 00-0000000
The name and address of the Mortgagee (secured party) is:
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
24. Time of Essence. Time is of the essence with respect to
the provisions of this Mortgage.
25. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Mortgage. In the
event an ambiguity or question of intent or interpretation arises, this Mortgage
shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Mortgage.
IN WITNESS WHEREOF, this instrument is executed as of the day
and year first above written by the person or persons identified below on behalf
of Mortgagor (and said person or persons hereby represent that they possess full
power and authority to execute this instrument).
THE MORTGAGOR HEREBY DECLARES AND ACKNOWLEDGES THAT THE
MORTGAGOR HAS RECEIVED, WITHOUT CHARGE, A TRUE COPY OF THIS MORTGAGE.
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MORTGAGOR:
PINNACLE PRODUCTS INC.
By
-----------------------------
President
--------------------
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STATE OF
--------------- )
) SS
COUNTY OF ------------- )
I, the undersigned, a Notary Public in and for the County and
State aforesaid, DO HEREBY CERTIFY, that the above named __________ President of
Pinnacle Products, Inc., and personally known to me to be the same person whose
name is subscribed to the foregoing instrument as such ___________ President
appeared before me this day in person and acknowledged that (s)he signed and
acknowledged that (s)he signed and delivered the said instrument as (his) (her)
own free and voluntary act and as the free and voluntary act of said corporation
for the uses and purposes therein set forth.
Given under my hand and Official seal this _____ day of
December, 2000.
-----------------------------------
Notary Public
(Seal)
My Commission Expires:
-------------
Notary Public in and for the State of
----------------
Print or type name
-----------------
This document was drafted by
and after recording returned to:
Xxxxx X. Xxxxxxxx
Sidley & Austin
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
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EXHIBIT A
Legal Description of the Premises
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EXHIBIT B
Permitted Exceptions to Title
Those title exceptions listed on title commitment 59-7230C,
dated December __, 2000, issued by First American Title Insurance Company. for
the property described on Exhibit A hereto.
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