COMBINATION MORTGAGE, SECURITY AGREEMENT
AND FIXTURE FINANCING STATEMENT
This Mortgage is made as of this 1st day of July, 1999, by Techne
Corporation, a Minnesota corporation, (herein called the "Mortgagor") for the
benefit of TCF NATIONAL BANK MINNESOTA, a national banking association (herein
called the "Mortgagee").
In consideration of the sum of $20,400,000.00 to the Mortgagor to be paid,
and for the purpose of securing (a) the repayment of the indebtedness evidenced
by the Mortgagor's promissory note (hereinafter called the "Note") of even date
herewith, payable to the order of the Mortgagee in the principal amount of
$20,400,000.00; said principal sum, with interest thereon at the rate therein
provided being finally due and payable on August 1, 2014, and all renewals,
extensions and modifications thereof and any note issued in substitution
therefor; (b) the payment of all other sums with interest thereon as may be
advanced by the Mortgagee in accordance with this Mortgage, an assignment of
rents and leases of even date herewith (hereinafter the "Assignment"), and any
other instruments securing payment of the Note (the indebtedness evidenced by
the Note and all such other sums are hereinafter collectively referred to as the
"Indebtedness"); and (c) the performance of all the covenants and agreements of
the Mortgagor contained in the Assignment, the Note or this Mortgage, the
Mortgagor does hereby mortgage, grant, bargain, sell, assign, transfer and
convey unto the Mortgagee forever all the tracts or parcels of land (hereinafter
called the "Land"), located in Hennepin County, Minnesota, and described in
Exhibit A attached hereto and made a part hereof, together with (i) all of the
buildings, structures and other improvements now standing or at any time
hereafter constructed or placed upon the Land; and (ii) all lighting, heating,
ventilating, air-conditioning, sprinkling and plumbing fixtures, water and power
systems, engines and machinery, boilers, furnaces, oil burners, elevators and
motors, communication systems, dynamos, transformers, electrical equipment and
all other fixtures of every description located in or on, and used, or intended
to be used in connection with the maintenance and operation of the Land or any
building now or hereafter located thereon (excluding, however, fixtures owned by
tenants or Mortgagor's subsidiaries or affiliates occupying space in any
building now or hereafter located on the Land); and (iii) all hereditaments,
easements, appurtenances, riparian rights, rents, issues, profits, condemnation
awards, mineral rights and water rights now or hereafter belonging or in any way
pertaining to the Land or to any building now or hereafter located thereon and
all the estates, rights and interests of the Mortgagor in the Land; (iv) all
building materials, maintenance equipment and all other personal property now or
hereafter located in, or on, or used, or intended to be used in connection with
the maintenance or operation of the Land or any building now or hereafter
located thereon and all replacements and additions thereto (excluding personal
property owned by tenants or Mortgagor's subsidiaries or affiliates occupying
space in any building now or hereafter located on the Land); and (v) all
additions, accessions, increases, parts, fittings, accessories, replacements,
substitutions, betterments, repairs and proceeds to any and all of the foregoing
(all of the foregoing, together with the Land, are hereinafter referred to as
the "Mortgaged Property").
To Have and To Hold the Mortgaged Property unto the Mortgagee forever;
provided, nevertheless, that this Mortgage is upon the express condition that if
the Mortgagor shall pay to the Mortgagee as and when due and payable the
principal of and interest on the Note and all other Indebtedness, and shall also
keep and perform each and every covenant and agreement of the Mortgagor herein
contained, then, this Mortgage and the estate hereby granted shall cease and be
and become void and shall be released of record at the expense of the Mortgagor;
otherwise this Mortgage shall be and remain in full force and effect.
The Mortgagor represents, warrants and covenants to and with the Mortgagee
that it is lawfully seized of the Land in fee simple and has good right and full
power and authority under all applicable provisions of law and under its
Articles of Incorporation to execute this Mortgage and to mortgage the Mortgaged
Property; that the Mortgaged Property is free from all liens, security interests
and encumbrances except as listed in Exhibit B attached hereto; that the
Mortgagor will warrant and defend the title to the Mortgaged Property and the
lien and priority of this Mortgage against all claims and demands of all persons
whomsoever, whether now existing or hereafter arising, not listed in Exhibit B;
and that all buildings and improvements now or hereafter located on the Land
are, or will be located entirely within the boundaries of the Land. The
covenants and warranties of this paragraph shall survive foreclosure of this
Mortgage and shall run with the Land.
The Mortgagor further covenants and agrees as follows:
1. Payment of the Note. The Mortgagor will duly and punctually pay the
principal of and interest on the Note in accordance with the terms of the Note,
and all other Indebtedness, when and as due and payable. The provisions
of the Note are hereby incorporated by reference into this Mortgage as fully
as if set forth at length herein.
2. Fund for Taxes and Assessments.
(a) The Mortgagor shall pay all taxes and special assessments when
due and shall, within fifteen (15) days after such payment, submit to
Mortgagee a receipt or other proof of payment satisfactory to Mortgagee
establishing the Mortgagor's payment in full of said taxes and assessments.
In the event the Mortgagor shall fail to deliver such proof within said
fifteen (15) day period or if the Mortgagor shall fail to cure any Event of
Default within five (5) business days after the Mortgagor's receipt from
Mortgagee of written notice thereof, upon receipt of written demand, the
Mortgagor shall pay to the Mortgagee on the day monthly installments of
interest or principal and interest are payable under the Note, until the
Note is paid in full, a sum equal to one-twelfth of the yearly taxes and
assessments levied against the Mortgaged Property as estimated initially
and from time to time by the Mortgagee, to be applied by the Mortgagee to
pay said taxes and assessments (such amounts being hereafter referred to as
the "Funds"). The Mortgagee shall apply the Funds to pay said taxes and
assessments prior to the date that penalty attaches for nonpayment so long
as the amount of Funds held by the Mortgagee is sufficient at that time to
make such payments. No earnings or interest shall be payable to the
Mortgagor on the Funds. Such Funds shall not be, nor be deemed to be,
trust funds, and the Mortgagee shall have the right to hold the Funds in
any manner the Mortgagee elects and may commingle the Funds with other
moneys held by the Mortgagee.
(b) If the amount of the Funds held by the Mortgagee shall exceed at
any time the amount deemed necessary by the Mortgagee to provide for the
payment of taxes and assessments, such excess shall, at the option of the
Mortgagee, either be promptly repaid to the Mortgagor or be credited to the
Mortgagor on the next monthly installment of Funds due. If at any time the
amount of the Funds held by the Mortgagee shall be less than the amount
deemed necessary by the Mortgagee to pay taxes and assessments as they fall
due, the Mortgagor shall promptly pay to the Mortgagee any amount necessary
to make up the deficiency upon notice from the Mortgagee to the Mortgagor
requesting payment thereof. The Funds are pledged as additional security
for the Indebtedness.
(c) Upon the occurrence of any Event of Default (as defined in
paragraph 19 hereof) the Mortgagee may apply in any order as the Mortgagee
shall determine in its sole discretion, any Funds held by the Mortgagee at
the time of application to pay taxes and assessments which are then or will
thereafter become due or as a credit against the Indebtedness. Upon
payment in full of all Indebtedness, the Mortgagee shall promptly refund to
the Mortgagor any Funds held by the Mortgagee.
3. Reserve Maintenance Account. In the event Mortgagee reasonably
determines that Mortgagor is not properly maintaining the Mortgaged Property as
required by paragraph 12 hereof, after sixty (60) days prior written notice of
Mortgagor's failure to maintain the Mortgaged Property and Mortgagor's failure
to correct the deficiencies within said sixty (60) day period, Mortgagee may
require the Mortgagor to pay, together with all other payments required by the
Note and this Mortgage, in monthly installments, an amount estimated by
Mortgagee to be sufficient to enable the Mortgagor to maintain the Mortgaged
Property as required by paragraph 12 to a reserve account (the "Reserve
Maintenance Account"). The original amount of the monthly payment to the
Reserve Maintenance Account shall be determined by Mortgagee based on a
reasonable basis. Said sum may be reasonably adjusted annually on the
anniversary of the date hereof, up or down, by Mortgagee. Interest at
Mortgagee's regular passbook savings rate shall be payable to Mortgagor on such
funds.
4. Application of Payments. All payments received by the Mortgagee from
the Mortgagor under the Note, the Assignment or this Mortgage shall be applied
by the Mortgagee in the following order of priority: (i) amounts payable to the
Mortgagee by the Mortgagor under paragraph 2 hereof; (ii) interest payable on
advances made pursuant to paragraph 14 hereof; (iii) principal of advances made
pursuant to paragraph 14 hereof; (iv) interest payable on the Note; (v)
principal of the Note; and (vi) any other sums secured by this Mortgage, in such
order of application as the Mortgagee may determine.
5. Payment of Taxes, Assessments and Other Charges. Subject to payments
in the manner provided under paragraph 2 hereof and to paragraph 10 relating to
contests, the Mortgagor shall pay before a penalty might attach for nonpayment
thereof, all taxes and assessments and all other charges whatsoever levied upon
or assessed or placed against the Mortgaged Property, except that assessments
may be paid in installments so long as no fine or penalty is added to any
installment for the nonpayment thereof. The Mortgagor shall likewise pay any
and all governmental 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 any part thereof or become due and
payable, and which create, may create or appear to create a lien upon the
Mortgaged Property, or any part thereof. The Mortgagor shall likewise pay all
taxes, assessments and other charges, levied upon or assessed, placed or made
against, or measured by, this Mortgage, or the recordation hereof, or the
Indebtedness secured hereby. In the event of any legislative action or judicial
decision after the date of this Mortgage, imposing upon the Mortgagee the
obligation to pay any such taxes, assessments or other charges, or deducting the
amount secured by this Mortgage from the value of the Mortgaged Property for the
purpose of taxation, or changing in any way the laws now in force for the
taxation of mortgages, deeds of trust or debts secured thereby, or the manner of
the operation of any such taxes so as to affect the interests of the Mortgagee,
then, and in such event, the Mortgagor shall bear and pay the full amount of
such taxes, assessments or other charges. Notwithstanding the foregoing
provisions of this paragraph 5, if for any reason payment by the Mortgagor of
any such taxes, assessments or other charges would be unlawful, or if the
payment thereof would render the indebtedness evidenced by the Note usurious,
the Mortgagee may declare the whole sum secured by this Mortgage, with interest
thereon, to be immediately due and payable. The Mortgagor shall promptly
furnish to the Mortgagee all notices received by the Mortgagor of amounts due
under this paragraph and in the event the Mortgagor shall make payment directly,
the Mortgagor shall promptly furnish to the Mortgagee receipts evidencing such
payments.
6. Payment of Utility Charges. Subject to paragraph 10 relating to
contests, the Mortgagor shall pay all charges (exclusive of charges which are
the obligations of tenants to pay) made by utility companies, whether public or
private, for electricity, gas, heat, water, or sewer, furnished or used in
connection with the Mortgaged Property or any part thereof, and will, upon
written request of the Mortgagee, furnish proper receipts evidencing such
payment.
7. Liens. Subject to paragraph 10 hereof relating to contests, the
Mortgagor shall not create, incur or suffer to exist any lien, encumbrance or
charge on the Mortgaged Property or any part thereof which might or could be
held to be equal or prior to the lien of this Mortgage, other than the liens set
forth in Exhibit B hereto. The Mortgagor shall pay, when due, the claims of all
persons supplying labor or materials to or in connection with the Mortgaged
Property.
8. Compliance with Laws. Subject to paragraph 10 relating to contests,
the Mortgagor shall comply with all present and future statutes, laws, rules,
orders, regulations and ordinances affecting the Mortgaged Property, any part
thereof or the use thereof.
9. Hazardous Substances.
(a) Definitions. As used in this Mortgage, the following terms shall
have the following meanings:
(i) "Environmental Law" means the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et
seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq., the Hazardous Materials Transportation Act, 49
U.S.C. Section 1802 et seq., the Toxic Substances Control Act, 15
U.S.C. Section 2601 et seq., the Federal Water Pollution Control Act,
33 U.S.C. Section 1251 et seq., the Clean Water Act, 33 U.S.C.
Section 1321 et seq., the Clean Air Act, 42 U.S.C. Section 7401 et
seq., the Minnesota Environmental Response and Liability Act, Minn.
Stat. Chap. 115B, the Minnesota Petroleum Tank Release Cleanup Act,
Minn. Stat. Chap. 115C, and any other federal, state, county,
municipal, local or other statute, law, ordinance or regulation which
may relate to or deal with human health or the environment, all as
may be from time to time amended.
(ii) "Hazardous Substances" means asbestos, ureaformaldehyde,
polychlorinated biphenyls ("PCBs"), nuclear fuel or material,
chemical waste, radioactive material, explosives, known carcinogens,
petroleum products and by-products and other dangerous, toxic or
hazardous pollutants, contaminants, chemicals, materials or
substances listed or identified in, or regulated by, any
Environmental Law.
(b) Representations and Warranties. Except as disclosed in the
Environmental Reports described on the attached Exhibit C (the
"Environmental Reports") heretofore delivered to Mortgagee, the Mortgagor
represents and warrants to the Mortgagee that:
(i) To the best of Mortgagor's knowledge based on the
Environmental Reports, there are not present in, on or under the
Mortgaged Property any Hazardous Substances, except as described in
the Environmental Reports.
(ii) To the best of the Mortgagor's knowledge based on the
Environmental Reports, the Mortgaged Property is not presently being
used and has not in the past been used for the handling, storage,
transportation, manufacture, release or disposal of any Hazardous
Substances, except as disclosed in the Environmental Reports and
for reasonable quantities used by Mortgagor and its subsidiaries
in the ordinary course of their business (the "Permitted
Substances").
(iii) To the best of the Mortgagor's knowledge based on the
Environmental Reports, there are no present and have not been
any past claims, investigations, administrative proceedings,
litigation, regulatory hearings or requests or demands for remedial
or response actions or for compensation, which may be proposed,
threatened or pending with respect to the Mortgaged Property,
alleging noncompliance with or violation of any Environmental Law,
seeking relief under any Environmental Law or relating to any
required environmental permits, licenses or authorizations, except as
disclosed in the Environmental Reports.
(iv) To the best of Mortgagor's knowledge based on the
Environmental Reports, all reports and notices required by any
Environmental Law have been duly made with respect to the Mortgaged
Property except with respect to those conditions identified in the
reports prepared by Summit Enviro Solutions entitled `Subsurface
Environmental Assessment' dated June 3, 1994, with respect to 0000
Xxxxxx Xxxxxx and entitled `Phase II Environmental Site Assessment'
dated June 25, 1999, with respect to 2201 Xxxxxxx, and all permits,
licenses and authorizations required by any Environmental Law have
been obtained and are in full force and effect with respect to the
Mortgaged Property.
(v) To the best of Mortgagor's knowledge based on the
Environmental Reports, there is not now present nor has there ever
been present, in, on or under the Mortgaged Property any above-ground
or underground storage tanks used for the storage of petroleum,
petroleum by-products or any other Hazardous Substances, except as
disclosed in the Environmental Reports and for the existing liquid
nitrogen above-ground storage tanks used by Mortgagor.
(vi) To the best of Mortgagor's knowledge based on the
Environmental Reports, the Mortgaged Property is not and never has
been listed on the United States Environmental Protection Agency's
National Priorities List of Hazardous Waste Sites or on any other
list, schedule, log, inventory or record of hazardous waste sites
maintained by any federal, state, or local agency, except as
disclosed in the Environmental Reports.
(vii) The Mortgagor has disclosed and delivered to the
Mortgagee all environmental reports and investigations which the
Mortgagor has obtained or ordered with respect to the Mortgaged
Property.
(c) Prohibited Uses. The Mortgagor shall not use, or permit the use
of, the Mortgaged Property for the handling, storage, transportation,
manufacture, release or disposal of any Hazardous Substances, except for
the Permitted Substances. In addition, the Mortgagor shall not install or
maintain, or permit the installation or maintenance of, any above-ground
or underground storage tanks for the storage of petroleum, petroleum
by-products or other Hazardous Substances in, about or under the Mortgaged
Property unless (i) the Mortgagor has obtained the prior written consent of
the Mortgagee for such installation and maintenance and (ii) the Mortgagor
installs and maintains such above-ground or underground storage tanks in
compliance with all applicable Environmental Laws. Notwithstanding the
foregoing, the Mortgagor, it subsidiaries or any tenant of the Mortgagor
may use or store Permitted Substances or immaterial amounts of commonly
known and used materials which may be deemed Hazardous Substances
hereunder, provided that any such use or storage (A) does not constitute a
separate remunerative activity of the Mortgagor or any tenant, (B) is
incidental to the Mortgagor's, its subsidiaries or such tenant's primary
use of the Mortgaged Property and does not constitute a primary use
thereof, and (C) complies at all times with all applicable Environmental
Laws.
(d) Environmental Reports. Upon the occurrence of an Event of
Default hereunder or if Mortgagee, in its sole discretion, believes that
any Hazardous Substance is present on or is being handled, stored,
transported, manufactured, released or disposed of in, on or under the
Mortgaged Property (except for Permitted Substances or those Hazardous
Substances which have been disclosed to Mortgagee in the Environmental
Reports or in writing prior to the date hereof), Mortgagee or its
authorized agent may enter upon the Mortgaged Property for the purpose of
performing inspections, taking soil borings, or conducting any other tests
or procedures, and obtain such further environmental reports as Mortgagee
deems necessary or appropriate from a reputable environmental consultant of
Mortgagee's choice, all at Mortgagor's expense. If any such environmental
report indicates any presence, handling, storage, transportation,
manufacture, release or disposal of Hazardous Substances in, on or under
the Mortgaged Property (except for Permitted Substances or those Hazardous
Substances which have been disclosed to Mortgagee in the Environmental
Reports or in writing prior to the date hereof), Mortgagee may require
Mortgagor, at Mortgagor's expense, to remedy any such presence, handling,
storage, transportation, manufacturing, release or disposal to the
reasonable satisfaction of Mortgagee.
(e) Legal Proceedings and Remedial Actions. The Mortgagor shall
immediately notify the Mortgagee in writing of any claim, investigation,
administrative proceeding, litigation, regulatory hearing or request or
demand for remedial or response action or for compensation which may be
proposed, threatened or pending, alleging the presence, handling, storage,
transportation, manufacture, release or disposal of Hazardous Substances
in, on or under the Mortgaged Property. The Mortgagee shall have the
right, but not the obligation, to join and participate in any such
investigation, administrative proceeding, litigation, regulatory hearing or
other action and to have its attorneys fees and expenses in connection
therewith paid by the Mortgagor. Without the Mortgagee's prior written
consent, the Mortgagor shall not take any remedial or response action or
enter into any settlement or other compromise with respect to any claim,
investigation, administrative proceeding, litigation, regulatory hearing or
request or demand for remedial or response action or for compensation
which, in the Mortgagee's reasonable judgment, may impair the value of the
Mortgagee's security under this Mortgage.
10. Permitted Contests. The Mortgagor shall not be required to (i) pay
any tax, assessment or other charge referred to in paragraph 5 hereof, (ii) pay
any charge referred to in paragraph 6 hereof, (iii) discharge or remove any
lien, encumbrance or charge referred to in paragraph 7 hereof, or (iv) comply
with any statute, law, rule, regulation or ordinance referred to in paragraph 8
hereof, so long as the Mortgagor shall (a) contest, in good faith, the
existence, amount or the validity thereof, the amount of damages caused thereby
or the extent of its liability therefor, by appropriate proceedings which shall
operate during the pendency thereof to prevent (A) the collection of, or other
realization upon the tax, assessment, charge or lien, encumbrance or charge so
contested, (B) the sale, forfeiture or loss of the Mortgaged Property or any
part thereof, and (C) any interference with the use or occupancy of the
Mortgaged Property or any part thereof, and (b) shall give such security to the
Mortgagee as may be demanded by the Mortgagee to ensure compliance with the
foregoing provisions of this paragraph 10. The Mortgagor shall give prompt
written notice to the Mortgagee of the commencement of any contest referred to
in this paragraph 10.
11. Insurance.
(a) Risks to be Insured. The Mortgagor, at its sole cost and
expense, will maintain insurance of the following character:
(i) Insurance on the buildings and other improvements now
existing or hereafter erected on the Land and on the fixtures and
personal property included in the Mortgaged Property against loss by
fire, and other hazards covered by the so-called "all-risk" form of
policy without a co-insurance clause in an amount equal to the actual
replacement cost thereof (exclusive of foundations and excavations)
without deduction for physical depreciation, which insurance shall in
no event be less than the unpaid principal balance of the Note at any
given time. While any building or other improvement is in the course
of being constructed or rebuilt on the Land, the Mortgagor shall
provide the aforesaid hazard insurance in builder's risk completed
value form including coverage available on the so-called "all-risk"
non-reporting form of policy for an amount equal to 100% of the
insurable replacement value of such building or other improvement.
(ii) If the Mortgaged Property includes steam boilers or
other equipment for the generation or transmission of steam,
insurance against loss or damage by explosion, rupture or bursting of
steam boilers, pipes, turbines, engines and other pressure vessels
and equipment, in an amount satisfactory to the Mortgagee, without a
co-insurance clause.
(iii) If the Land or any part thereof is located in a
designated official flood-hazardous area, flood insurance insuring
the buildings and improvements now existing or hereafter erected on
the Land in an amount equal to the lesser of the principal balance of
the Note or the maximum limit of coverage made available with respect
to such buildings and improvements under the Federal Flood Disaster
Protection Act of 1973, as amended, and the regulations issued
thereunder.
(iv) Comprehensive general liability insurance protecting
against claims arising from any accident or occurrence in or upon the
Mortgaged Property in an amount acceptable to the Mortgagee.
(v) While any building or improvement is in the course of
being constructed, renovated or rebuilt on the Land, such workers'
compensation insurance as is required by statute.
(vi) Insurance against interruption of business in respect of
the Mortgaged Property in an amount sufficient to pay one (1) year's
debt service on the Note, including principal and interest thereof
and tax and assessment payments described in paragraph 2.
(b) Policy Provisions. All insurance policies and renewals thereof
maintained by the Mortgagor pursuant to subparagraphs 11(a)(i) through
(a)(iii) and (a)(vi) above shall be written by an insurance carrier
satisfactory to the Mortgagee, contain a standard mortgagee clause in favor
of and in form acceptable to the Mortgagee, contain an agreement of the
insurer that it will not cancel or modify the policy except after thirty
(30) days prior written notice to the Mortgagee, and be reasonably
satisfactory to the Mortgagee in all other respects. The insurance
maintained pursuant to subparagraphs 11(a)(iv) and (a)(v) shall also be
written by an insurance carrier acceptable to the Mortgagee and shall name
the Mortgagee as an additional insured.
(c) Delivery of Policy. The Mortgagor will deliver to the Mortgagee
copies of policies satisfactory to the Mortgagee evidencing the insurance
which is required under subparagraphs 11(a)(i) through (a)(iii) and
(a)(vi), certificates evidencing the insurance which is required under
subparagraphs 11(a)(iv) and (a)(v), and the Mortgagor shall promptly
furnish to the Mortgagee copies of all renewal notices and all receipts of
paid premiums received by it. At least thirty (30) days prior to the
expiration date of a required policy, the Mortgagor shall deliver to the
Mortgagee a copy of a renewal policy in form satisfactory to the Mortgagee.
If the Mortgagor has a blanket insurance policy in force providing coverage
for several properties of the Mortgagor, including the Mortgaged Property,
the Mortgagee will accept a certificate of such insurance together with a
copy of such blanket insurance policy; provided the certificate sets forth
the amounts of insurance and coverage, and such amounts are at least equal
to the amounts required hereinabove, the original policy of insurance is
written by a carrier or carriers acceptable to the Mortgagee, insures
against the risks set forth hereinabove, cannot be amended, modified or
cancelled without thirty (30) days' prior written notice to any mortgagee
of the Mortgagor, is in an amount not less than the unpaid principal
balance secured by this Mortgage or such lesser amount as required by
paragraph 11(a)(iii), and has a full replacement cost endorsement meeting
the requirements of paragraph 11(a)(i).
(d) Assignment of Policy. If the Mortgaged Property is sold at a
foreclosure sale or if the Mortgagee shall acquire title to the Mortgaged
Property, the Mortgagee shall have all of the right, title and interest of
the Mortgagor in and to any insurance policies required under subparagraphs
11(a)(i) through (a)(iii) and (a)(vi) hereof and the unearned premiums
thereon and in and to the proceeds resulting from any damage to the
Mortgaged Property prior to such sale or acquisition.
(e) Notice of Damage or Destruction: Adjusting Loss. If the
Mortgaged Property or any part thereof shall be damaged or destroyed by
fire or other casualty, the Mortgagor will promptly give written notice
thereof to the insurance carrier and the Mortgagee, and will not adjust any
damage or loss in excess of $200,000.00 unless the Mortgagee shall have
joined in such adjustment; but if there has been no adjustment of any such
damage or loss within four months from the date of occurrence thereof and
if an Event of Default shall exist at the end of such four-month period or
at any time thereafter, the Mortgagee may alone, make proof of loss, adjust
and compromise any claim under the policies and appear in and prosecute any
action arising from such policies. In connection therewith, the Mortgagor
does hereby irrevocably authorize, empower and appoint the Mortgagee as
attorney-in-fact for the Mortgagor (which appointment is coupled with an
interest) to do any and all of the foregoing in the name and on behalf of
the Mortgagor.
(f) Application of Insurance Proceeds. All sums paid under any
insurance policy required in subparagraphs 11(a)(i) through (a)(iii) and
(a)(vi), shall be paid to the Mortgagee. Mortgagee agrees to allow the use
of sums paid under the insurance policy required under subparagraph (a)
above for repair and reconstruction of the Mortgaged Property provided (i)
there exists no default or other event which with the passing of time or
the giving of notice or both would constitute a default under the Note or
this Mortgage, (ii) insurance proceeds and additional funds deposited by
the Mortgagor with Mortgagee prior to the commencement of any repair or
reconstruction are adequate to complete repair and reconstruction of the
Mortgaged Property pursuant to plans and specifications reasonably approved
by Mortgagee, (iii) disbursement procedures acceptable to Mortgagee are in
place, which procedures shall include provisions for the deposit of
construction shortfalls, collection of lien waivers, issuance of title
policies by a title insurance company, payment of Mortgagee's fees and
expenses in disbursing, and coordination of work, and Mortgagor shall have
reimbursed Mortgagee for all of its reasonable out-of-pocket expenses in
connection with such reconstruction and disbursement, including, without
limitation, title insurance fees, inspection fees, attorney's fees, and
architect's fees, and (iv) Mortgagee shall have received such consents and
assurances from municipal authorities as required by the municipal
authorities and tenants in the Mortgaged Property as Mortgagee may
reasonably request, including, without limitation, assurances from the
tenants that they will continue as tenants in the Mortgaged Property upon
completion of the repair or reconstruction work. If the above conditions
are not satisfied as to application of insurance proceeds, and in any event
as to condemnation awards, Mortgagee shall apply the same (after first
deducting therefrom Mortgagor's and Mortgagee's reasonable expenses
incurred in collecting the same, including but not limited to reasonable
attorneys' fees) to the reduction of the outstanding principal balance of
the Note or to payment of the restoration, repair, replacement or
rebuilding of the property that is damaged or destroyed in such manner as
Mortgagee may determine. Any application of insurance proceeds or eminent
domain proceeds shall not extend or postpone the due dates of the monthly
installments payable under the Note or change the amount of such
installments nor shall there be an imposition of any prepayment premium as
a result of said application.
(g) Reimbursement of the Mortgagee's Expenses. The Mortgagor shall
promptly reimburse the Mortgagee upon demand for all of the Mortgagee's
expenses incurred in connection with the collection of the insurance
proceeds, including but not limited to reasonable attorneys fees, and all
such expenses, together with interest from the date of disbursement at the
rate stated in the Note (unless collection of interest from the Mortgagor
at such rate would be contrary to applicable law, in which event such
amounts shall bear interest at the highest rate which may be collected from
the Mortgagor under applicable law) shall be additional amounts secured by
this Mortgage.
12. Preservation and Maintenance of the Mortgaged Property. The
Mortgagor (i) shall keep the buildings and other improvements now or hereafter
erected on the Land in safe and good repair and condition, ordinary depreciation
excepted; (ii) shall, upon damage to or destruction of the Mortgaged Property or
any part thereof by fire or other casualty, restore, repair, replace or rebuild
the Mortgaged Property that is damaged or destroyed to the condition it was in
immediately prior to such damage or destruction, whether or not any insurance
proceeds are available or sufficient for such purpose, unless the Mortgagee
shall have elected to apply such proceeds to reduction of the Indebtedness;
(iii) shall constantly maintain the parking and landscaped areas of the
Mortgaged Property; (iv) shall not commit waste or permit impairment or
deterioration of the Mortgaged Property; (v) shall not remove from the Land any
of the fixtures and personal property included in the Mortgaged Property unless
the same is immediately replaced with property of at least equal value and
utility, and this Mortgage becomes a valid first lien on such property.
13. Inspection. The Mortgagee, or its agents, shall have the right at
all reasonable times, to enter upon the Mortgaged Property for the purposes of
inspecting the Mortgaged Property or any part thereof. The Mortgagee shall,
however, have no duty to make such inspection.
14. Protection of the Mortgagee's Security. Subject to the rights of the
Mortgagor under paragraph 10 hereof, if the Mortgagor fails to perform any of
the covenants and agreements contained in this Mortgage or if any action or
proceeding is commenced which affects the Mortgaged Property or the interest of
the Mortgagee therein, or the title thereto, then the Mortgagee, at Mortgagee's
option, may after ten (10) days written notice to Mortgagor perform such
covenants and agreements, defend against and/or investigate such action or
proceeding, and take such other action as the Mortgagee deems necessary to
protect the Mortgagee's interest. The Mortgagee shall be the sole judge of the
legality, validity and priority of any claim, lien, encumbrance, tax,
assessment, charge and premium paid by it and of the amount necessary to be paid
in satisfaction thereof. The Mortgagee is hereby given the irrevocable power of
attorney (which power is coupled with an interest and is irrevocable) to enter
upon the Mortgaged Property as the Mortgagor's agent in the Mortgagor's name to
perform any and all covenants and agreements to be performed by the Mortgagor as
herein provided. Any amounts or expenses disbursed or incurred by the Mortgagee
pursuant to this paragraph 14, with interest thereon, shall become additional
Indebtedness of the Mortgagor secured by this Mortgage. Unless the Mortgagor
and the Mortgagee agree in writing to other terms of repayment, such amounts
shall be immediately due and payable, and shall bear interest from the date of
disbursement at the interest rate stated in the Note, unless collection from the
Mortgagor of interest at such rate would be contrary to applicable law, in which
event such amounts shall bear interest at the highest rate which may be
collected from the Mortgagor under applicable law. The Mortgagee shall, at its
option, be subrogated to the lien of any mortgage or other lien discharged in
whole or in part by the Indebtedness or by the Mortgagee under the provisions
hereof, and any such subrogation rights shall be additional and cumulative
security for this Mortgage. Nothing contained in this paragraph 14 shall
require the Mortgagee to incur any expense or do any act hereunder, and the
Mortgagee shall not be liable to the Mortgagor for any damages or claims arising
out of action taken by the Mortgagee pursuant to this paragraph 14.
15. Condemnation.
(a) The Mortgagor hereby irrevocably assigns to the Mortgagee any
award or payment which becomes payable by reason of any taking of the
Mortgaged Property, or any part thereof, whether directly or indirectly or
temporarily or permanently, in or by condemnation or other eminent domain
proceedings (hereinafter called "Taking"). Forthwith upon receipt by the
Mortgagor of notice of the institution of any proceeding or negotiations
for a Taking, the Mortgagor shall give notice thereof to the Mortgagee.
The Mortgagee may appear in any such proceedings and participate in any
such negotiations and may be represented by counsel. The Mortgagor,
notwithstanding that the Mortgagee may not be a party to any such
proceeding, will promptly give to the Mortgagee copies of all notices,
pleadings, judgments, determinations and other papers received by the
Mortgagor therein. The Mortgagor will not enter into any agreement
permitting or consenting to the taking of the Mortgaged Property, or any
part thereof, or providing for the conveyance thereof in lieu of
condemnation, with anyone authorized to acquire the same in condemnation or
by eminent domain unless the Mortgagee shall first have consented thereto
in writing. All Taking awards shall be adjusted jointly by the Mortgagor
and the Mortgagee. All awards payable as a result of a Taking shall be
paid to the Mortgagee, which may, at its option, apply them, after first
deducting the Mortgagor's and Mortgagee's expenses incurred in the
collection thereof, to the payment of the Indebtedness, whether or not due
and in such order of application as the Mortgagee may determine, or to the
repair or restoration of the Mortgaged Property, in the manner as provided
in paragraph 11(f) relating to the application of insurance proceeds or in
such manner as the Mortgagee may determine. Any application of Taking
awards to principal of the Note shall not extend or postpone the due dates
of the monthly installments payable under the Note or change the amount of
such installments nor shall there be an imposition of any prepayment
premium as a result of said application.
(b) If the Taking involves a taking of any building or other
improvement now or hereafter located on the Land, the Mortgagor shall
proceed, with reasonable diligence, to demolish and remove any ruins and
complete repair or restoration of the Mortgaged Property as nearly as
possible to its respective size, type and character immediately prior to
the Taking, whether or not the condemnation awards are available or
adequate to complete such repair or restoration unless the Mortgagee has
applied the entire condemnation award to payment of the Indebtedness. The
Mortgagor shall promptly reimburse the Mortgagee upon demand for all of the
Mortgagee's expenses (including reasonable attorney's fees) incurred in the
collection of awards and their disbursement in accordance with this
paragraph, and all such expenses, together with interest from the date of
disbursement at the rate stated in the Note (unless collection of interest
from the Mortgagor at such rate would be contrary to applicable law, in
which event such amounts shall bear interest at the highest rate which may
be collected from the Mortgagor under applicable law) shall be additional
amounts secured by this Mortgage.
16. Financial Statements and Other Information; Books and Records. The
Mortgagor will prepare or cause to be prepared at its expense and deliver to the
Mortgagee (in such number as may reasonably be requested):
(a) As soon as practicable after the end of each relevant calendar
year, and in no event later than one hundred twenty (120) days thereafter,
an audited financial statement of Mortgagor as of the end of such calendar
year consisting of the balance sheet of the Mortgagor and the related
statements of income and changes in financial position of the Mortgagor for
the calendar year then ended, setting forth in comparative form the figures
for the previous calendar year, all in reasonable detail and prepared by a
certified public accountant selected by the Mortgagor.
(b) As soon as practicable after the end of each quarter, and in no
event later than forty five (45) days thereafter, a quarterly review
statement of Borrower.
(c) Promptly after the completion thereof, any internally prepared
written plans and written audits of the Mortgagor's ability to become Year
2000 Compliant, and any subsequent revisions or updates thereof.
(d) Immediately upon becoming aware of the existence of any
condition or event which constitutes, or which after notice or lapse of
time or both would constitute, an Event of Default, written notice
specifying the nature and period of existence thereof and what action the
Mortgagor has taken, is taking or proposes to take with respect thereto.
The Mortgagor shall keep and maintain at all times at the Mortgagor's address
stated below or at such other place as the Mortgagee may approve in writing,
complete and accurate books of accounts and records in sufficient detail to
reflect correctly the results of the operation of the Mortgaged Property and
copies of all written contracts, leases and other instruments which affect the
Mortgaged Property. Such books, records, contracts, leases and other
instruments shall be subject to examination and inspection by the Mortgagee or
its representative during ordinary business hours.
17. No Secondary Financing, Due on Sale or Transfer.
(a) The Mortgagor shall not create or permit to be created or to
remain any subordinate lien on the Mortgaged Property or any part thereof
to secure any indebtedness for borrowed money, without obtaining the prior
written consent of the Mortgagee.
(b) The Mortgagor shall not sell all or substantially all of it's
assets, or permit a sale of the controlling interest of the Mortgagor, or a
statutory merger whereby Mortgagor ceases to exist (each, a "Disposition")
without first obtaining Mortgagee's prior written consent. Controlling
interest shall mean the ownership of an absolute majority of the voting
stock of the Mortgagor by a single person or entity or combination
thereof or a leveraged buy-out. Notwithstanding the foregoing prohibition
of a Disposition, Mortgagor may, in connection with a Disposition, enter
into such an arrangement with the acquiring or surviving business entity
("Successor") which has either a credit rating from Xxxxx'x and Standard &
Poors equal to or superior to that of the Mortgagor or, absent a rating of
Mortgagor by either rating agency, a rating of the Successor by the rating
agencies of at least investment grade as determined by the rating agencies
at the time of the Disposition; provided the Successor assumes the
obligations of the Mortgagor in connection with said Disposition. In the
event the Successor's rating is not investment grade, the Successor's
parent must have such an investment rating of investment grade and shall be
required to guaranty full payment of the Indebtedness for its full term.
18. Security Interest. This Mortgage shall constitute a security
agreement with respect to (and the Mortgagor hereby grants the Mortgagee a
security interest in) all personal property and fixtures included in the
Mortgaged Property as more specifically described in paragraphs (ii), (iv) and
(v) of the granting clause above. The Mortgagor will from time to time, at the
request of the Mortgagee, execute any and all financing statements covering such
personal property and fixtures (in a form satisfactory to the Mortgagee) which
the Mortgagee may reasonably consider necessary or appropriate to perfect its
security interest.
19. Events of Default. Each of the following occurrences shall
constitute an event of default hereunder (herein called an "Event of Default"):
(a) The Mortgagor shall fail to duly and punctually pay any
installment of interest or principal and interest payable under the Note.
(b) The Mortgagor shall default in the performance of or breach its
agreement contained in subparagraph 17(a) hereof.
(c) The Mortgagor shall fail to duly and punctually pay when and as
due any payment for taxes and assessments required by paragraph 2 to be
paid or shall fail to provide the insurance coverage required by paragraph
11(a).
(d) The Mortgagor shall fail duly to perform or observe any of the
covenants or agreements contained in this Mortgage (other than a covenant
or agreement or default, which is elsewhere in this paragraph 19
specifically dealt with) and such failure shall continue unremedied for
thirty (30) calendar days or have adopted an action plan acceptable to
Mortgagee for the cure of any such default if the default cannot be
remedied within said thirty (30) calendar day period. Notwithstanding the
foregoing, Mortgagor shall have ninety (90) calendar days within which to
either remedy a default with respect to a covenant or agreement pertaining
to environmental issues or have adopted an action plan reasonably
acceptable to Mortgagee for the cure of any such default if the default
cannot be remedied within said ninety (90) calendar day period.
(e) The Mortgagor shall make an assignment for the benefit of its
creditors, or the Mortgagor shall generally not be paying its debts as they
become due, or a petition shall be filed by or against the Mortgagor under
the United States Bankruptcy Code which has not been discharged within
sixty (60) days of its filing, or the Mortgagor shall seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of a
material part of its properties or of the Mortgaged Property or shall not,
within sixty (60) days after the appointment (without its consent or
acquiescence) of a trustee, receiver or liquidator of any material part of
its properties or of the Mortgaged Property, have such appointment vacated.
(f) A judgment, writ or warrant of attachment or execution, or
similar process shall be entered and become a lien on, issued or levied
against, the Mortgaged Property or any part thereof and shall not be
released, vacated or fully bonded within thirty (30) days after its entry,
issue or levy.
(g) The Mortgaged Property, or any part thereof, shall be sold,
conveyed, transferred, encumbered or full possessory rights therein
transferred, or the controlling interest in the Mortgagor shall be sold,
conveyed, transferred or encumbered, whether voluntarily, involuntarily or
by operation of law contrary to the provisions of subparagraph 17(b); this
provision shall apply to each and every sale, transfer, conveyance or
encumbrance regardless of whether or not the Mortgagee has consented or
waived its rights, whether by action or omission, in connection with any
previous sale, transfer, conveyance or encumbrance.
(h) The Mortgagor shall breach any warranty or covenant contained in
the Assignment, and such breach shall be continuing beyond the applicable
grace period.
(i) The Mortgagee shall in good faith reasonably believe that the
Year 2000 problem is likely to result in a material adverse change in
Mortgagor's condition (financial or otherwise), operations, properties or
prospects, or in Mortgagor's ability to repay its obligations to the
Mortgagee in the manner agreed.
20. Acceleration: Foreclosure. Upon the occurrence of any Event of
Default, the Mortgagee may, at its option, exercise one or more of the following
rights and remedies (and any other rights and remedies available to it):
(a) The Mortgagee may, by written notice to the Mortgagor, declare
immediately due and payable all unmatured Indebtedness secured by this
Mortgage, and the same shall thereupon be immediately due and payable,
without further notice or demand.
(b) The Mortgagee shall have and may exercise with respect to all
personal property and fixtures which are part of the Mortgaged Property,
all the rights and remedies accorded upon default to a secured party under
the Uniform Commercial Code, as in effect in the State of Minnesota. If
notice to the Mortgagor of intended disposition of such property is
required by law in a particular instance, such notice shall be deemed
commercially reasonable if given to the Mortgagor (in the manner specified
in paragraph 24) at least ten (10) calendar days prior to the date of
intended disposition. The Mortgagor shall pay on demand all costs and
expenses incurred by the Mortgagee in exercising such rights and remedies,
including without limitation, reasonable attorneys fees and legal expenses.
(c) The Mortgagee may (and is hereby authorized and empowered to)
foreclose this Mortgage by action or advertisement, pursuant to the
statutes of the State of Minnesota in such case made and provided, power
being expressly granted to sell the Mortgaged Property at public auction
and convey the same to the purchaser in fee simple and, out of the proceeds
arising from such sale, to pay all Indebtedness secured hereby with
interest, and all legal costs and charges of such foreclosure and the
maximum attorneys fees permitted by law, which costs, charges and fees the
Mortgagor agrees to pay.
21. Estoppel Certificate. The Mortgagor agrees at any time and from time
to time, upon not less than fifteen (15) days prior notice by the Mortgagee, to
execute, acknowledge and deliver, without charge, to the Mortgagee or to any
person designated by the Mortgagee, a statement in writing certifying that this
Mortgage is unmodified (or if there have been modifications, identifying the
same by the date thereof and specifying the nature thereof), the principal
amount then secured hereby and the unpaid balance of the Note, that the
Mortgagor has not received any notice of default or notice of acceleration or
foreclosure of this Mortgage (or if the Mortgagor has received such a notice,
that it has been revoked, if such be the case), that to the knowledge of the
Mortgagor no Event of Default exists hereunder (or if any such Event of Default
does exist, specifying the same and stating that the same has been cured, if
such be the case), that the Mortgagor to its knowledge has no claims or offsets
against the Mortgagee (or if the Mortgagor has any such claims, specifying the
same), and the dates to which the interest and the other sums and charges
payable by the Mortgagor pursuant to the Note have been paid.
22. Forbearance Not a Waiver; Rights and Remedies - Cumulative. No delay
by the Mortgagee in exercising any right or remedy provided herein or otherwise
afforded by law or equity shall be deemed a waiver of or preclude the exercise
of such right or remedy, and no waiver by the Mortgagee of any particular
provision of this Mortgage shall be deemed effective unless in writing signed by
the Mortgagee. All such rights and remedies provided for herein or which the
Mortgagee or the holder of the Note may have otherwise, at law or in equity,
shall be distinct, separate and cumulative and may be exercised concurrently,
independently or successively in any order whatsoever, and as often as the
occasion therefor arises. The Mortgagee's taking action pursuant to paragraph
14 or receiving proceeds, awards or damages pursuant to paragraphs 11 or 15
shall not impair any right or remedy available to the Mortgagee under paragraph
20 hereof. Acceleration of maturity of the Note, once claimed hereunder by the
Mortgagee, may, at the option of the Mortgagee, be rescinded by written
acknowledgment to that effect by the Mortgagee, but the tender and acceptance of
partial payments alone shall not in any way affect or rescind such acceleration
of maturity of the Note, provided that any such acceleration shall be subject to
the Mortgagor's right of reinstatement as provided in Minnesota Statutes Section
580.30.
23. Successors and Assigns Bound; Number; Gender; Agents; Captions;
Amendments. The covenants and agreements herein contained shall bind, and the
rights hereunder shall inure to, the respective heirs, legal representatives,
successors and assigns of the Mortgagee and the Mortgagor; provided, however,
that this paragraph 23 shall not limit the effect of paragraph 19(g). Wherever
used, the singular number shall include the plural, and the plural the singular,
and the use of any gender shall apply to all genders. The captions and headings
of the paragraphs of this Mortgage are for convenience only and are not to be
used to interpret or define the provisions hereof. No amendment of this
Mortgage shall be effective unless in a writing executed by the Mortgagor and
the Mortgagee.
24. Notice. Any notice from the Mortgagee to the Mortgagor under this
Mortgage shall be deemed to have been given by the Mortgagee and received by the
Mortgagor when mailed by certified mail by the Mortgagee to the Mortgagor at the
following address:
Techne Corporation
000 XxXxxxxx Xxxxx XX
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
or at such other address as the Mortgagor may designate in writing to the
Mortgagee.
Any notice from the Mortgagor to the Mortgagee under this Mortgage shall be
deemed to have been given by the Mortgagor and received by the Mortgagee when
mailed by certified mail by the Mortgagor to the Mortgagee at the following
address:
TCF National Bank Minnesota
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Commercial Real Estate
or at such other address as the Mortgagee may designate in writing to the
Mortgagor.
25. Governing Law; Severability. This Mortgage shall be governed by the
substantive laws of the State of Minnesota. In the event that any provision or
clause of this Mortgage conflicts with applicable law, such conflict shall not
affect other provisions of this Mortgage which can be given effect without the
conflicting provisions and to this end the provisions of this Mortgage are
declared to be severable.
26. Counterparts. This Mortgage may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
27. Production of Documents. The Mortgagor shall, while this Mortgage is
in full force and effect, furnish the Mortgagee with such documents, instruments
and papers as the Mortgagee may request from time to time in order for the
Mortgagee to effectuate a sale or a participation in the loan evidenced by the
Note and this Mortgage.
28. Waiver of Marshalling. The Mortgagor, any party who consents to this
Mortgage and any party who now or hereafter acquires a lien on the Mortgaged
Property and who has actual or constructive notice of this Mortgage hereby
waives any and all right to require the marshalling of assets in connection with
the exercise of any of the remedies permitted by applicable law or provided
herein.
29. Fixture Filing. From the date of its recording, this Mortgage shall
be effective as a financing statement filed as a fixture filing with respect to
all goods constituting part of the Mortgaged Property (as more particularly
described in item (ii) of the granting clause of this Mortgage) 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:
Techne Corporation
000 XxXxxxxx Xxxxx XX
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
(b) Name and Address of Secured Party:
TCF National Bank Minnesota
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
ATTN: Commercial Lending
(c) This document covers goods which are or are to become fixtures.
(d) The name of the record owner of the Land is the Debtor described
above.
(e) The tax identification number of the Debtor is 00-0000000.
30. Further Assurances. At any time and from time to time until payment
in full of the Indebtedness, the Mortgagor will, at the request of the
Mortgagee, promptly execute and deliver to the Mortgagee such additional
instruments as may be reasonably required further to evidence the lien of this
Mortgage and further to protect the security interest of the Mortgagee with
respect to the Mortgaged Property, including, without limitation, additional
security agreements, financing statements and continuation statements. Any
expenses incurred by the Mortgagee in connection with the preparation and
recordation of any such instruments, including, but not limited to reasonable
attorneys fees, shall become additional Indebtedness of the Mortgagor secured by
this Mortgage. Unless the Mortgagor and the Mortgagee agree in writing to other
terms of repayment, such amounts shall be immediately due and payable, and shall
bear interest from the date of disbursement at the interest rate stated in the
Note, unless collecting from the Mortgagor of interest at such rate would be
contrary to applicable law, in which event such amounts shall bear interest at
the highest rate which may be collected from the Mortgagor under applicable law.
31. Fees. From the date hereof, for expenses incurred from the date
hereof, the Mortgagor shall pay on demand all appraisal fees, survey fees,
recording fees, license and permit fees, title insurance and other insurance
premiums incurred by the Mortgagee in connection with the Note, this Mortgage,
the Assignment and the transactions contemplated hereby, and all other costs and
expenses incurred by the Mortgagee in connection with the negotiation,
preparation, execution, recording, administration or enforcement of the Note,
this Mortgage, the Assignment and the other instruments and documents to be
delivered hereunder and thereunder, including the reasonable fees of counsel for
the Mortgagee with respect thereto. All such costs, expenses and fees shall
become additional Indebtedness of the Mortgagor secured by this Mortgage.
Unless the Mortgagor and the Mortgagee agree in writing to other terms of
repayment, such amounts shall be due and payable immediately upon their
disbursement by the Mortgagee, and shall bear interest from the time of such
disbursement at the lesser of the annual rate stated in the Note or the highest
rate which may be collected from the Mortgagor under applicable law.
32. Year 2000. For purposes hereof, "Year 2000 Compliant" means with
regard to any person or entity, that all software, embedded microchips, and
other processing capabilities utilized by, and material to, the business
operations or financial condition of such person or entity are able to interpret
and manipulate data on and involving all calendar dates correctly and without
causing any abnormal ending scenario including, but not limited to, the date
"September 9, 1999" and any dates on or after January 1, 2000. The Mortgagor
hereby represents and warrants to the Mortgagee and agrees that: (a) the
Mortgagor has made due inquiry to determine whether the computer applications
and hardware of the Mortgagor and the Mortgagor's key material suppliers and
customers will be Year 2000 Compliant in all material respects by September 1,
1999; (b) the Mortgagor has a program in place to become Year 2000 Compliant in
all material respect by September 1, 1999, and the Mortgagor will devote
adequate resources toward, diligently pursue, and take all actions necessary to
complete such program and become Year 2000 Compliant by September 1, 1999; (c)
to the best of the Mortgagor's knowledge, all of the Mortgagor's key material
suppliers and customers will be Year 2000 Compliant in all material respect by
September 1, 1999; (d) the Mortgagor will deliver to the Mortgagee such
information regarding the plans and progress of the Mortgagor and to the extent
available from Mortgagor's key material suppliers and customers toward becoming
Year 2000 Compliant as the Mortgagee may reasonably request from time to time,
including, but not limited to, any assessment by a third party of the
Mortgagor's efforts to become Year 2000 Compliant; and (e) at the Mortgagee's
request from time to time, the Mortgagor will order, obtain and deliver to the
Mortgagee a copy of audits of the Mortgagor's plans and progress to become Year
2000 Compliant by September 1, 1999, and the Mortgagor shall permit the
Mortgagee and the Mortgagee's representatives to conduct audits of the
Mortgagor's operations for such purpose.
33. Depository Relationship. Mortgagor or a subsidiary of Mortgagor
shall establish and maintain throughout the life of this Mortgage a combined
depository relationship with Mortgagee consisting of an operating demand deposit
account(s) with average collected balances of at least $100,000.00 and a
Corporate Prime Yield Money Marketing Account maintaining a minimum balance of
$500,000.00. The Indebtedness shall become due and payable if Mortgagor or a
subsidiary of Mortgagor terminates its depository relationship with Mortgagee as
described herein.
34. WAIVER OF JURY TRIAL. THE MORTGAGOR ACKNOWLEDGES THAT THE RIGHT TO
TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED AND THAT THE
TIME AND EXPENSE REQUIRED FOR TRIAL BY A JURY MAY EXCEED THE TIME AND EXPENSE
REQUIRED FOR TRIAL WITHOUT A JURY. THE MORTGAGOR, AFTER CONSULTING (OR HAVING
HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF MORTGAGOR'S CHOICE, KNOWINGLY
AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF MORTGAGEE AND MORTAGOR, WAIVES
ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE
OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS MORTGAGE, ANY RELATED
AGREEMENTS, OR THE OBLIGATIONS. THE MORTGAGOR HAS READ ALL OF THIS MORTGAGE AND
UNDERSTANDS ALL OF THE PROVISIONS OF THIS MORTGAGE. THE MORTGAGOR ALSO AGREES
THAT COMPLIANCE BY THE MORTGAGEE WITH THE EXPRESS PROVISIONS OF THIS MORTGAGE
SHALL CONSTITUTE GOOD FAITH AND SHALL BE CONSIDERED REASONABLE FOR ALL PURPOSES.
35. Future Advances.
(a) To the extent that this Mortgage secures future advances, the
amount of such advances is not currently known. The acceptance of this
Mortgage by the Mortgagee, however, constitutes an acknowledgement that the
Mortgagee is aware of the provisions of Minnesota Statutes Section 287.05,
subd. 5, and intends to comply with the requirements contained therein.
(b) The maximum principal amount of indebtedness secured by this
Mortgage at any one time, excluding advances made by the Mortgagee in
protection of the Mortgaged Property or the lien of this Mortgage, shall be
$20,400,000.00.
(c) The representations contained in this section are made solely for
the benefit of county recording authorities in determining the mortgage
registry tax payable as a prerequisite to the recording of this Mortgage.
The Mortgagor acknowledges that such representations do not constitute or
imply an agreement by the Mortgagee to make any future advances to the
Mortgagor.
IN WITNESS WHEREOF, the Mortgagor has caused this Mortgage to be duly
executed as of the day and year first-above written.
Techne Corporation
By /s/ Xxxxxx X. Xxxxx
------------------------
Its President
STATE OF MINNESOTA )
) ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this 1st day of July,
1999, by Xxxxxx X. Xxxxx, the President of Techne Corporation, a Minnesota
corporation, on behalf of said corporation.
/s/ Xxxx X. Xxxxx
-----------------------
Notary Public
This instrument was drafted by:
BEST & XXXXXXXX (RJC)
Limited Liability Partnership
0000 X.X. Xxxx Xxxxx
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
EXHIBIT A
TO
COMBINATION MORTGAGE, SECURITY AGREEMENT
AND FIXTURE FINANCING STATEMENT
MORTGAGOR: Techne Corporation
MORTGAGEE: TCF National Bank Minnesota
The Land described in the referenced instrument is located in Hennepin
County, Minnesota, and is described as follows:
Xxxx 0, 0, 00 xxx 00, Xxxxxxx'x Subdivision Number 268, Hennepin County,
Minnesota, together with a temporary non-exclusive parking easement on the real
property described in Exhibit A-1 attached hereto.
EXHIBIT B
TO
COMBINATION MORTGAGE, SECURITY AGREEMENT
AND FIXTURE FINANCING STATEMENT
MORTGAGOR: Techne Corporation
MORTGAGEE: TCF National Bank Minnesota
The Mortgaged Property is subject to the following encumbrances and no
others:
1. Easement Agreement dated December 30, 1975, filed December 30, 1975,
as Document No. 1163522 (as to Parcel 1).
2. Easement Agreement dated May 18, 1976, filed June 11, 1976, as
Document No. 1178824 (as to Parcel 1).
3. Restriction contained in Warranty Deed dated July 1, 1999, filed
____________, 1999, as Document No. ____________.
4. Terms and conditions of Declaration of Easement Agreement dated July
1, 1999, filed ____________, as Document No. ____________.
EXHIBIT C
Environmental Reports
The Environmental Reports shall include:
1. Those letters and reports relating to the property known as 0000 Xxxxxxx
Xxxxxx, 000 XxXxxxxx Xxxxx, 000 XxXxxxxx Xxxxx and 0000 Xxxxxx Xxxxxx
described in the following letters which are attached hereto and
incorporated hereby:
Letter dated December 11, 1998 to Xxxxxx X. Xxxxx, President of R & D
Systems, Inc. from Xxxxx Xxxxxxxxx, Managing Partner at Hillcrest
Development.
Letter dated December 16, 1998 to Xxxxx Xxxxxxxx at Xxxxxxxxxx &
Xxxxx, P. A. from Xxxxx Xxxxxxxxx, Managing Partner at Hillcrest
Development.
Letter dated January 7, 1998 to Xxxxx Xxxxxxxx at Xxxxxxxxxx & Xxxxx,
P. A. from Xxxxx Xxxxxxxxx, Managing Partner at Hillcrest
Development.
Letter dated December 28, 1998 to Xxxxx Xxxxxxxxx Managing Partner at
Hillcrest Development from Xxxxxx Xxxxxxxxx, National Director of
Engineering & Construction at RREEF - Engineering Group regarding due
diligence environmental reports prepared by Summit Envirosolutions.
Letter dated December 24, 1998 to Xxxxx Xxxxxxxxx Managing Partner at
Hillcrest Development from Xxxxxx Xxxxxxxxx, National Director of
Engineering & Construction at RREEF - Engineering Group regarding due
diligence elevator equipment inventory reports prepared by Elevator
Advisory Group, Inc.
2. Letter dated April 16, 1990 to Xxxx Xxxxxxxxx at Hillcrest Development from
Xxxx X. Xxxxxxxx, Senior Pollution Control Specialist at the Minnesota
Pollution Control Agency regarding tank removal.
3. Letter dated September 17, 1990 to Xxxx Xxxxxxxxx at Hillcrest Development
from Xxxx X. Xxxxxxxx, Senior Pollution Control Specialist at the Minnesota
Pollution Control Agency regarding tank removal and spill.
4. Letter dated July 13, 1994 to Xxxxx Xxxx Limited Partnership from Xxxx
Xxxxxx, Project Manager and Xxxx Xxxxxxx, Hydrogeologist at the Minnesota
Pollution Control Agency regarding file closure.
5. Letter dated February 22, 1999 to Xxxxxxx Xxxxx at Xxxxxxxxxx & Xxxxx from
Xxxxx Xxxxx at Summit Envirosolutions regarding due diligence information.
6. Facsimile transmittal dated February 25, 1999 to Xxxxxxx Xxxxx at
Xxxxxxxxxx & Xxxxx from Xxxxx X. Xxxxx at Summit Envirosolutions regarding
PCB wipe samples.
7. Facsimile transmittal dated February 26, 1999 to Xxxxxxx Xxxxx at
Xxxxxxxxxx & Xxxxx from Xxxxx X. Xxxxx at Summit Envirosolutions regarding
tank removal.
8. Phase II Environmental Site Assessment, R & D Systems Site, 0000 Xxxxxxx
Xxxxxx Xxxxxxxxx prepared by Summit Envirosolutions, Inc., dated June 25,
1999.
