EXHIBIT 10.12
AMENDED AND RESTATED OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS, SECURITY AGREEMENT AND FIXTURE FILING
by
IRONTON IRON INC.
as Mortgagor
to
THE BANK OF NOVA SCOTIA
as Agent
for the benefit of the Lenders (as defined herein)
Property Known as
0000 X. 0xx Xxxxxx, Xxxxxxx, Xxxx
This Mortgage Was Prepared By
And After Recordation This Mortgage Should Be Returned To:
Xxxxx X. Xxxxxx, Esq.
c/o Mayer, Brown, Xxxx & Maw LLP
0000 X Xxxxxx XX
Xxxxxxxxxx, X.X. 00000
AMENDED AND RESTATED OPEN-END MORTGAGE, ASSIGNMENT OF
LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING
THIS AMENDED AND RESTATED OPEN-END MORTGAGE, ASSIGNMENT OF
LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING AMENDS
AND RESTATES COMPLETELY THE EXISTING MORTGAGE (AS DEFINED IN
THE RECITALS BELOW)
THIS AMENDED AND RESTATED OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this "Mortgage") is entered into
as of the 8 day of January, 2004 by IRONTON IRON INC., an Ohio corporation
(hereinafter called "Mortgagor"), having its principal place of business at 0000
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxx, Xxxxxxxx 00000, to THE BANK OF NOVA SCOTIA (in
its individual capacity, "Scotia Capital"), having an office at 000 Xxxxxxxxx
Xxxxxx X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 as collateral agent under the
Credit Agreement (as defined below) (together with its successor(s) thereto in
such capacities, the "Collateral Agent") for the benefit of itself and each of
the Secured Parties. Except as otherwise provided herein, all capitalized terms
used but not otherwise defined herein shall have the respective meanings given
to them in the Credit Agreement.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Intermet Corporation, a Georgia corporation (the "Borrower"),
the "Lenders" thereunder and Scotia Capital, as administrative and collateral
agent, are parties to that certain $225,000,000 Five-Year Credit Agreement dated
as of November 5, 1999 (as amended through the Eighth Amendment dated as of
December 19, 2003, the "Existing Loan Agreement");
WHEREAS, pursuant to the First Amended and Restated Credit Agreement
dated as of January 8, 2004 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the "Lenders" thereunder, and Scotia Capital, as administrative and
collateral agent, such Lenders and the Borrower have agreed to amend and restate
the Existing Loan Agreement and continue to make the loans, letters of credit
and other extensions of credit thereunder;
WHEREAS, Mortgagor guaranteed the obligations of the Borrower under the
Existing Loan Agreement and certain other obligations of the Borrower and its
subsidiaries pursuant to the First Amended and Restated Guaranty Agreement dated
as of July 17, 2001 (the "Existing Guaranty Agreement");
WHEREAS, the Mortgagor has amended and restated the Existing Guaranty
Agreement and guaranteed the Obligations of the Borrower under the Credit
Agreement and certain other obligations of the Borrower and its subsidiaries
pursuant to a Second Amended and Restated Guaranty Agreement dated as of January
8, 2004 (the "Guaranty Agreement");
WHEREAS, in connection with the Existing Loan Agreement, Mortgagor has
heretofore executed and delivered to the Collateral Agent that certain Open-End
Mortgage, Security Agreement, Financing Statement and Assignment of Leases and
Rents from Mortgagor to the
Collateral Agent, dated as of August 15, 2001, and recorded in the official real
estate records for the County in Volume 115, Page 244 (the "Existing Mortgage");
WHEREAS, as a condition to the effectiveness of the Credit Agreement,
the Secured Parties have required that Mortgagor amend and restate the Existing
Mortgage, grant the Mortgage and grant to Collateral Agent, for the benefit of
the Secured Parties, the liens and security interests referred to herein to
secure: (i) prompt and complete payment and performance of the "Guaranteed
Obligations" (as defined in the Guaranty Agreement); (ii) all other payment and
performance obligations provided by this Mortgage; (iii) the Obligations (as
defined in the Credit Agreement); and (iv) any future advances made by any of
the Secured Parties in connection with the property mortgaged hereby or in
connection with advances under the Credit Agreement, whenever incurred including
all interest (including interest at a post-default rate) and late charges and
prepayment charges (all of the aforesaid obligations of Mortgagor to any of the
Secured Parties, together with the other payment and performance obligations and
liabilities described herein, being hereinafter referred to collectively as the
"Obligations Secured");
WHEREAS, the Obligations Secured hereby shall not exceed an aggregate
principal amount at any one time outstanding of $210,000,000, not including
Other Advances, or the Costs, Fees and Expenses (as defined in Section 9 below),
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
Collateral Agent under the provisions of the Credit Agreement or under any other
security agreement at any time executed by Mortgagor;
WHEREAS, the obligations secured by the Existing Mortgage have been
subsumed by the Obligations Secured;
WHEREAS, Mortgagor and Collateral Agent desire to amend and restate in
their entirety in this Mortgage all of the provisions, recitations, covenants,
terms, conditions, debts, obligations and liabilities contained in the Existing
Mortgage. The provisions, recitations, covenants, terms, conditions, debts,
obligations and liabilities of this Mortgage shall control, it being understood
that the provisions, recitations, covenants, terms, conditions, debts,
obligations and liabilities of the Existing Mortgage are being amended and
restated in their entirety by this Mortgage and the other Credit Documents; and
WHEREAS, the Mortgagor intends that this Mortgage not effect a novation
of its obligations under the Existing Mortgage, but merely a restatement, and
where applicable, an amendment to the terms governing such obligations.
NOW, THEREFORE, the parties hereto agree that in consideration of the
foregoing Recitals and to secure payment of the Obligations Secured and in
consideration of One Dollar ($1.00) in hand paid, the receipt and sufficiency
whereof are hereby acknowledged:
The lien of the Existing Mortgage is hereby combined and coordinated
with the lien of the Mortgage so that together they shall hereafter constitute
in law one mortgage, a single first priority lien upon the Premises, securing
the Obligations Secured as more particularly set forth herein. The provisions,
recitations, covenants, terms, conditions, debts, obligations and liabilities
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of the Existing Mortgage are hereby amended and restated in their entirety as
set forth in this Mortgage, and the terms of this Mortgage shall supercede and
control in all respects the provisions, recitations, covenants, terms,
conditions, debts, obligations and liabilities of the Existing Mortgage.
Mortgagor does hereby grant, remise, release, alien, convey, mortgage
and warrant to the Collateral Agent, its successors and assigns, for the benefit
of the Secured Parties that certain real estate legally described in Exhibit A
hereto (the "Land") in Xxxxxxxx County (the "County"), State of Ohio (the
"State"); 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 (which,
together with the Land, is herein called the "Premises").
Except as specifically modified hereby, nothing contained in this
Mortgage shall be construed to release, cancel, terminate or otherwise affect
adversely all or any part of the security interest in the Mortgaged Property
granted under the Existing Mortgage, which security interest has been continued
and confirmed by the Mortgagor hereunder.
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, or used or intended to be used in connection with, or with the
operation of, the Premises, including, but not limited to (a) all apparatus,
inventory, machinery and equipment of Mortgagor (the "Equipment"); and (b) all
extensions, additions, improvements, betterments, renewals, substitutions and
replacements to or of any of the foregoing (the "Fixtures"). It is mutually
agreed, intended and declared that the Premises and all of the Property Rights,
Equipment and Fixtures owned by Mortgagor (referred to collectively herein as
the "Real Property") shall, to the extent 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.
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
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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) the Collateral Agent is
hereby authorized to collect and receive said awards and proceeds and to give
proper receipts and acquittance therefor, and to apply the same as provided in
Section 9 hereof; 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.")
Mortgagor (i) does hereby pledge and assign to the Collateral Agent
from and after the date hereof (including any period of redemption), primarily
and on a parity with the Real Property, and not secondarily, all the rents,
issues and profits of the Real Property and all rents, issues, profits,
revenues, royalties, bonuses, rights and benefits due, payable or accruing
(including all deposits of money as advance rent, for security or as xxxxxxx
money or as down payment for the purchase of all or any part of the Real
Property) (the "Rents") under any and all present and future leases, contracts
or other agreements relative to the ownership or occupancy of all or any portion
of the Real Property, and (ii) except to the extent such a transfer or
assignment is not permitted by the terms thereof (provided that Mortgagor shall
use all commercially reasonable efforts to obtain all required consents to such
transfer or assignment), does hereby transfer and assign to the Collateral Agent
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").
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 Equipment, the Fixtures, the Real Property, the Intangibles, the
Rents and the Leases, is herein referred to as the "Mortgaged Property."
Nothing herein contained shall be construed as constituting the
Collateral Agent a mortgagee-in-possession in the absence of the taking of
actual possession of the Mortgaged Property by the Agent. Nothing contained in
this Mortgage shall be construed as imposing on Collateral Agent any of the
obligations of the lessor under any Lease of the Mortgaged Property in the
absence of an explicit assumption thereof by the Collateral Agent. In the
exercise of the powers herein granted the Collateral Agent, no liability shall
be asserted or enforced against the Collateral Agent, 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 the
Collateral Agent, its beneficiaries, successors and assigns, forever for the
uses and purposes herein set forth. Mortgagor hereby releases and waives all the
equity of redemption under and by virtue of any of the laws, if any, of the
State, and Mortgagor hereby covenants, represents and warrants that, at the time
of the execution 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
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Property, and that the title to the Mortgaged Property is free and clear of all
encumbrances, except those permitted by Section 7.02 of the Credit Agreement
("Permitted Encumbrances"), and that, except for the Permitted Encumbrances,
Mortgagor will forever defend the same against all claims in derogation of the
foregoing.
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 Uniform
Commercial Code in effect in the State (the "Code"), this instrument shall
constitute a security agreement, fixture filing and financing statement, and for
that purpose, the following information is set forth:
(a) In addition to the foregoing grant of mortgage, Mortgagor hereby
grants a continuing security interest to the Collateral Agent for the benefit of
the Secured Parties in that portion of the Mortgaged Property with respect to
which the creation and perfection of a security interest is governed by the
Code;
(b) The "Debtor" is the Mortgagor, and the "Secured Party" is the
Collateral Agent for the benefit of itself and the other Secured Parties.
(c) Name and address of Debtor are as set forth in the Preamble to this
instrument.
(d) Name and address of Secured Party are as set forth in the Preamble
to this instrument.
(e) Description of the types (or items) of property covered by this
financing statement: All of the Mortgaged Property described or referred herein
to which a security interest may be perfected pursuant to the Code.
(f) Description of real estate to which the collateral is related or
attached or upon which it is located: Described in Exhibit A.
(g) The taxpayer identification number of the Debtor is: 00-0000000.
(h) The Collateral Agent may file this instrument or a reproduction
thereof, in the real estate records or other appropriate index, as a financing
statement for any of the items specified herein as part of the Mortgaged
Property. Any reproduction of this Mortgage or of any other security agreement
or financing statement is sufficient as a financing statement.
Mortgagor agrees to execute, deliver and file or refile any financing
statement, continuation statement, or other instruments Collateral Agent may
reasonably require from time to time to perfect or renew such security interest
under the Code. To the extent permitted by law, (i) all of the Fixtures are or
are to become fixtures on the Land and (ii) this instrument, upon recording or
registration in the real estate records of the proper office, shall constitute a
"fixture-filing" within the meaning of Sections 9-102(a)(40) and 9-502 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 Collateral Agent's sole election.
5.
THE FOLLOWING PROVISIONS SHALL ALSO CONSTITUTE AN INTEGRAL PART OF THIS
MORTGAGE:
SECTION 1. Payment of Taxes on the Mortgage. Mortgagor agrees that, if
the government of 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, imposition or other charge upon this Mortgage or
the credit or indebtedness secured hereby or the interest of any Secured Party
in the Premises or upon any Secured Party 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 the Collateral Agent or pay (or reimburse
the Collateral Agent for) such taxes, assessments, impositions or other charges.
Mortgagor agrees to exhibit to the Collateral Agent, at any time upon request,
official receipts showing payment of all taxes, assessments, impositions and
other charges which Mortgagor is required or elects to pay under this paragraph.
Mortgagor agrees to indemnify each Secured Party against liability on account of
such documentary stamps, taxes, assessments, impositions or other charges
whether such liability arises before or after payment of the Obligations Secured
and regardless of whether this Mortgage shall have been released.
SECTION 2. Leases Affecting the Real Property. Mortgagor agrees
faithfully to perform all of its obligations under all present and future Leases
as additional security and 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 the Collateral Agent's
option and without any further documentation, attorn to the Collateral Agent as
lessor if for any reason the Collateral Agent becomes lessor thereunder, and,
upon demand, pay rent to the Collateral Agent, and the Collateral Agent shall
not be responsible under such Lease for matters arising prior to the Collateral
Agent becoming lessor thereunder; provided, however, the Collateral Agent shall
not become lessor or obligated as lessor under any such Leases unless or until
it shall elect in writing to do so.
SECTION 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 the
Collateral Agent's reasonable judgment, to impair Mortgagor's title to such
property or any portion thereof, or to make possible any claim of easement by
prescription or of implied dedication to public use. Mortgagor further covenants
that it shall not (i) institute or acquiesce in any proceeding to change the
zoning classification of the Real Property, (ii) record or permit to be recorded
a subdivision plat involving the Land or (iii) change the use of the Mortgaged
Property, in each case without the prior written consent of the Collateral
Agent, which shall not be unreasonably withheld.
Mortgagor represents and warrants to the Collateral Agent as of the
date hereof, and covenants to the Collateral Agent so long as this Mortgage
shall be in effect, that (i) all permits and licenses required for the use and
operation of the Mortgaged Property have been obtained and are in full force and
effect, (ii) all utility services necessary for the use and operation of the
Mortgaged Property are in place, (iii) there is vehicular and pedestrian access
to the Mortgaged Property from public thoroughfares appropriate to the use of
the Mortgaged Property and (iv)
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except as disclosed to the Collateral Agent in writing, the Mortgaged Property
is free from loss or damage due to the effect of casualty or condemnation. The
Mortgagor shall not permit any legal or economic waste to occur with respect to
the Mortgaged Property.
SECTION 4. Indemnification. 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. Without limiting, but in addition to and in
furtherance of, any indemnification Mortgagor has granted in any Credit
Document, Mortgagor agrees to indemnify, defend (with counsel reasonably
acceptable to the Collateral Agent) and hold harmless each Secured Party from
and against any and all losses, suits, 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 any of the following events which occur prior
to the date upon which the Collateral Agent causes Mortgagor to be removed from
possession of the Real Property and (a) the Collateral Agent takes possession of
the Real Property for the account of the Secured Parties or (b) the Collateral
Agent causes possession of the Real Property to be delivered to a third party,
either through a mortgage foreclosure action or otherwise: (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.
SECTION 5. Insurance. Mortgagor shall, at its sole expense, maintain
for the benefit of the Collateral Agent, until the Obligations Secured are paid
in full, insurance policies (a) in such amounts, with such coverage and with
such insurers as are typically maintained by prudent owners of property such as
the Mortgaged Property or (b) as the Collateral Agent shall otherwise reasonably
require. All liability insurance policies so maintained shall name the
Collateral Agent as an additional insured. All casualty and similar policies so
maintained shall name the Collateral Agent as loss payee. So long as no Event of
Default exists, Mortgagor may adjust any casualty loss and receive and retain
any proceeds of any such loss. At any time an Event of Default exists, the
Collateral Agent shall have the sole and exclusive right to adjust any casualty
loss and proceeds of any such loss shall be paid directly to the Collateral
Agent to be applied as provided in Section 9 of this Mortgage.
SECTION 6. Real Property Taxes. Mortgagor covenants and agrees to pay
before due all real property taxes, assessments, ground rent, if any, water and
sewer rents, fees and charges, levies, permit, inspection and license fees and
other dues, charges or impositions, including all charges and license fees for
the use of vaults, chutes and similar areas adjoining the Land, maintenance and
similar charges and charges for utility services, in each instance whether now
or in the future, directly or indirectly, levied, assessed or imposed on the
Mortgaged Property or Mortgagor and whether levied, assessed or imposed as
excise, privilege or property taxes ("Property Taxes"). Notwithstanding the
foregoing, in connection with the protest or appeal of Property Taxes, Mortgagor
may defer the payment of Property Taxes during the pendency of any such protest
or appeal so long as (a) reserves or a bond adequate for the payment of such
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Property Taxes together with possible penalties and interest is maintained and
(b) there shall at no time be any possibility of a tax sale of any portion of
the Mortgaged Property or a forfeiture thereof. Mortgagor shall inform the
Collateral Agent in writing of any delay in the payment of Property Taxes in
connection with such protest or appeal and, in the event that the Collateral
Agent shall reasonably determine that the lien created by the Mortgage is
insecure, Mortgagor shall take such steps (including payment of Property Taxes
under protest) as the Collateral Agent shall reasonably require.
SECTION 7. Condemnation Awards. Mortgagor hereby assigns to the
Collateral Agent, as additional security, all awards of damage resulting from
condemnation proceedings or the taking of or injury to the Real Property for
public use. So long as no Event of Default exists, Mortgagor may control any
condemnation proceedings and receive and retain any proceeds of any such
proceedings. At any time an Event of Default exists, the Collateral Agent shall
have the sole and exclusive right to control any such proceedings and proceeds
of any such proceedings shall be paid directly to the Collateral Agent to be
applied as provided in Section 9 of this Mortgage.
SECTION 8. Remedies. Subject to the provisions of the Credit Agreement
and the Guaranty Agreement, upon the occurrence of an Event of Default under the
terms of the Guaranty Agreement, including, without limitation, a failure to
perform or observe any of the covenants set forth in this Mortgage that is not
cured within any applicable cure period (any such occurrence or failure being
referred to herein as an "Event of Default"), in addition to any rights and
remedies provided for in the Guaranty Agreement, and to the extent permitted by
applicable law, the following provisions shall apply:
(a) Collateral Agent's Power of Enforcement. It shall be
lawful for the Collateral Agent to 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 Obligations 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 Obligations Secured hereby were
created) for the benefit of the Secured Parties, 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 Obligations Secured 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 the Collateral Agent in possession of the Real Property
with the same power granted to a receiver pursuant to this subparagraph
and with all other rights and privileges of a mortgagee-in possession
under applicable law.
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(b) Mortgagee's Right to Enter and Take Possession, Operate
and Apply Income. The Collateral Agent shall, at its option, have the
right, acting through its agents or attorneys or a receiver, to the
extent permitted by and in accordance with applicable law, 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 such order and to such of the Obligations Secured as the
Collateral Agent may determine in its sole discretion or in accordance
with any deficiency decree entered in any foreclosure proceedings.
SECTION 9. Application of the Rents or Proceeds from Foreclosure or
Sale. In any foreclosure of this Mortgage by judicial action, 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) Obligations Secured. All of the Obligations Secured and
other sums secured hereby which then remain unpaid; and
(b) Other Advances. All other items advanced or paid by the
Collateral Agent pursuant to this Mortgage (collectively, "Other
Advances"); and
(c) Costs, Fees and Other Expenses. All court costs,
reasonable attorneys' and paralegals' fees and expenses, appraiser's
fees, environmental audit, testing and survey 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 the
Collateral Agent in the reasonable exercise of its judgment may deem
necessary (collectively, "Costs, Fees and Expenses") shall become
additional Obligations Secured hereby when paid or incurred by the
Collateral Agent in connection with any proceedings, including but not
limited to probate and bankruptcy proceedings, to which any Secured
Party 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 shall be distributed and
applied in the following order unless a court of competent jurisdiction
shall otherwise direct:
(1) FIRST, to payment of all Costs, Fees and Expenses, Other
Advances and other reasonable costs and expenses of the Collateral
Agent incurred in connection with the collection and enforcement of the
Obligations Secured or of the lien granted to the Collateral Agent
pursuant to this Mortgage;
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(2) SECOND, to payment of that portion of the Obligations
Secured constituting accrued and unpaid interest and fees, pro rata
among the Secured Parties in accordance with the amount of such accrued
and unpaid interest and fees owing to each of them;
(3) THIRD, to payment of the principal of the Obligations
Secured (including, without limitation, the Rate Protection Obligations
included in the Obligations Secured), pro rata among the Secured
Parties in accordance with the amount of such principal owing to each
of them;
(4) FOURTH, to payment of any Obligations Secured (other than
those listed above) pro rata among the Secured Parties in accordance
with the amounts owing to them; and
(5) FIFTH, the balance if any, after all of the Obligations
Secured have been satisfied to Mortgagor or to whosoever may be
lawfully entitled to receive them; provided that prior to the
Termination Date (as defined herein) such balance may, in the sole
discretion of the Collateral Agent, be held by the Collateral Agent as
additional collateral security for the Obligations Secured to be
applied at any time thereafter pursuant to this Section 9.
SECTION 10. Cumulative Remedies; Delay or Omission Not a Waiver. Each
remedy or right of the Collateral Agent 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 or postponement 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 the Collateral Agent.
SECTION 11. Collateral Agent's Remedies against Multiple Parcels. If
more than one property, lot or parcel is covered by this Mortgage, and if this
Mortgage is foreclosed upon, or judgment is entered upon any Obligations Secured
hereby, or if Collateral Agent exercises its power of sale, execution may be
made upon or the Collateral Agent 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 the Collateral
Agent's election.
SECTION 12. No Merger. In the event of a foreclosure of this Mortgage
or any other mortgage or trust deed securing the Obligations Secured, the
Obligations Secured then due the Collateral Agent shall, at the Collateral
Agent's option, not be merged into any decree of foreclosure entered by the
court, and the Collateral Agent may concurrently or subsequently seek to
foreclose one or more mortgages or deeds of trust which also secure said
Obligations Secured.
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SECTION 13. Notices. All notices and other communications provided to
any party hereto under this Mortgage shall be in writing and shall be given in
the manner, within the time periods and to the addressees identified in the
Guaranty Agreement.
SECTION 14. Extension of Payments. Mortgagor agrees that, without
affecting the liability of any person for payment of the Obligations 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 the Collateral Agent of its rights and privileges hereunder),
the Collateral Agent may at any time and from time to time, on request of the
Mortgagor, without notice to any person liable for payment of any Obligations
Secured, but otherwise subject to the provisions of the Guaranty Agreement,
extend the time, or agree to alter or amend the terms of payment of such
Obligations Secured. Mortgagor further agrees that any part of the security
herein described may be released with or without consideration without affecting
the remainder of the Obligations Secured or the remainder of the security.
SECTION 15. Governing Law. Mortgagor agrees that this Mortgage is to be
construed, governed and enforced in accordance with the laws of the State.
Wherever possible, each provision of this Mortgage shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Mortgage shall be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Mortgage.
SECTION 16. Satisfaction of Mortgage. Upon (a) the date on which all
the Obligations Secured have been paid in full and all commitments to make
loans, issue letters of credit or otherwise extend credit pursuant to the Credit
Agreement have been terminated (the "Termination Date"), or (b) a Permitted
Asset Sale with respect to the Mortgaged Property then, upon demand therefor
following the Termination Date or such Permitted Asset Sale, a satisfaction of
mortgage or reconveyance of the Mortgaged Property shall promptly be provided by
the Collateral Agent to Mortgagor.
SECTION 17. Successors and Assigns Included in Parties. This Mortgage
shall be binding upon the Mortgagor and upon the successors, assigns and vendees
of Mortgagor and shall inure to the benefit of the Secured Parties and their
respective successors, transferees and assigns; all references herein to the
Mortgagor and to the Collateral Agent shall be deemed to include their
respective successors, transferees and assigns. Without limiting the foregoing,
any Secured Party may assign or otherwise transfer all or any portion of the
Obligations Secured held by it to any other Person, and such other Person shall
thereupon become vested with all of the rights and benefits thereof granted to
such Secured Party under this Mortgage or otherwise, subject, however, to any
contrary provisions in such assignment or transfer, and to the applicable
provisions of the Credit Agreement. Mortgagor's successors and assigns shall
include, without limitation, a receiver, trustee or debtor in possession of or
for 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.
SECTION 18. WAIVER OF APPRAISEMENT, VALUATION, STAY, EXTENSION AND
REDEMPTION LAWS. Mortgagor agrees, to the full extent permitted by
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law, that at all times following an Event of Default, neither Mortgagor nor
anyone claiming through or under it shall or will set up, claim or seek to take
advantage of any appraisement, valuation, stay, homestead 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 the Collateral Agent 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
irrevocably waives any and all statutory or other rights of reinstatement or
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. Mortgagor
further waives, to the full extent it may lawfully do so, all statutory or other
rights in its favor, limiting concurrent actions to foreclose this Mortgage and
exercising other rights with respect to the Obligations Secured, including,
without limitation, any right vested in Mortgagor or any affiliate to limit the
right of the Collateral Agent to pursue or commence concurrent actions against
Mortgagor or any such affiliate or any property owned by any one or more of
them.
SECTION 19. 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 Guaranty Agreement, the provisions of
the Guaranty Agreement shall govern.
SECTION 20. Future Advances. This Mortgage is given for the purpose of
securing loan advances and other extensions of credit which the Secured Parties
have made and may make to or for the benefit of the Borrower pursuant and
subject to the terms and provisions of the Credit Agreement. The parties hereto
intend that, in addition to any other debt or obligation secured hereby, this
Mortgage shall secure unpaid balances of loan advances and other extensions of
credit made after this Mortgage is recorded in Xxxxxxxx County, Ohio, whether
made pursuant to an obligation of the Secured Parties or otherwise, and in such
event, such advances shall be secured to the same extent as if such future
advances were made on the date hereof, although there may be no advance made at
the time of execution hereof, although there may be no indebtedness outstanding
at the time any advance is made and although such advances may from time to time
be repaid to a zero balance and thereafter readvanced. Such loan advances may or
may not be evidenced by guarantees or notes executed pursuant to the Credit
Agreement.
In addition to any other debt or obligation secured hereby, this
Mortgage shall also secure unpaid balances of advances heretofore and hereafter
made, with respect to the Mortgaged Property, for payment of taxes, assessments,
insurance premiums or other costs incurred for the protection of the Mortgaged
Property as contemplated by section 5301.233 of the Ohio Revised Code.
SECTION 21. 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
Guaranty Agreement shall not be in any way affected,
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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.
SECTION 22. 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 the
Collateral Agent relating to this Mortgage shall be superior to the rights of
the holder of any intervening lien or encumbrance.
SECTION 23. CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES. The
Mortgagor hereby acknowledges and agrees that:
(a) It irrevocably submits to the jurisdiction of any state or federal
court sitting in the State, in any action or proceeding arising out of or
relating to this Mortgage, and the Mortgagor hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and determined in
such State's state or federal court. The Mortgagor hereby irrevocably waives, to
the fullest extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding. The Mortgagor hereby
irrevocably consents to the service of any and all process in any such action or
proceeding by the mailing of copies of such process to the Mortgagor at its
address provided in Section 13 of this Mortgage along with a copy to the
addressees provided in such Section (if any). The Mortgagor agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(b) Nothing in this Section shall affect the right of the Collateral
Agent to serve legal process in any other manner permitted by law or affect the
right of the Collateral Agent to bring any action or proceeding against the
Mortgagor or its property in the courts of any other jurisdiction.
(c) To the extent that the Mortgagor has or hereafter may acquire any
immunity from the jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Mortgagor hereby irrevocably waives such immunity in respect of its obligations
under this Mortgage.
(d) To the extent required by law, for effectiveness, to the extent
that any provision of the Credit Agreement or the Guaranty Agreement is referred
to in this instrument, such provision of the Credit Agreement or the Guaranty
Agreement is hereby incorporated by reference.
SECTION 24. Time of Essence. Time is of the essence with respect to the
provisions of this Mortgage.
SECTION 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
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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.
SECTION 26. Collateral Agent's Right to Appear. The Collateral Agent
shall have the right to appear in and defend any legal proceeding brought
regarding the Mortgaged Property and to bring any legal proceeding, in the name
and on behalf of Mortgagor or in the Collateral Agent's name, that the
Collateral Agent, in its sole discretion, determines should be brought to
protect the Collateral Agent's or the Secured Parties' interest in the Mortgaged
Property.
SECTION 27. Savings Clause. Any provision of this Mortgage which is
prohibited or unenforceable in any jurisdiction, will, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction will not invalidate or render unenforceable
such provision in any other jurisdiction.
SECTION 28. Fraudulent Conveyance Limitation. Anything else in this
Mortgage notwithstanding, the grant by the Mortgagor hereunder of a mortgage,
security interest or other Lien in the Mortgaged Property shall secure the
Obligations Secured only for the maximum amount that can be incurred without
rendering this Mortgage void or voidable under applicable laws relating to
fraudulent obligations, fraudulent conveyance or fraudulent transfer, and not
for any greater amount.
BALANCE OF PAGE IS INTENTIONALLY BLANK
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EXHIBIT A
Legal Description of the Premises
(See attached.)
