EXHIBIT 10.32
THIS MORTGAGE SHALL BE LIMITED TO, AND WILL SECURE ONLY $2,505,000
OF THE TOTAL OBLIGATIONS.
(ALABAMA)
MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF
LEASES AND RENTS AND FINANCING STATEMENT
BY
NIEMAND INDUSTRIES, INC.
AN DELAWARE CORPORATION
MORTGAGOR
TO
FIRST SOURCE FINANCIAL, LLP,
AS AGENT
MORTGAGEE
RELATING TO PREMISES IN:
PERRY COUNTY, ALABAMA
DATED: AS OF JULY 31, 1998
THIS INSTRUMENT WAS PREPARED BY
AND AFTER RECORDING SHOULD BE RETURNED TO:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ESQ.
WINSTON & ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
THIS INSTRUMENT CONSTITUTES A FINANCING STATEMENT FILED AS A FIXTURE FILING
PURSUANT TO SECTION 9-402 OF THE INDIANA UNIFORM COMMERCIAL CODE.
TABLE OF CONTENTS
TOPIC PAGE
I RECITALS............................................................1
II THE GRANT...........................................................3
III GENERAL AGREEMENTS..................................................6
3.01 Payment of Indebtedness...................................6
3.02 Impositions.................................................6
3.03 Payment of Impositions by Mortgagee.........................7
3.04 Insurance and Insurance Proceeds............................7
3.05 Condemnation Awards.........................................7
3.06 Restoration.................................................8
3.07 Maintenance of Property.....................................8
3.08 Prohibited Liens and Transfers..............................8
3.09 Stamp Taxes.................................................8
3.10 Change in Tax Laws..........................................9
3.11 Assignment of Leases and Rents..............................9
3.12 Releases...................................................10
3.13 Further Assurances.........................................11
3.14 Environmental Provisions...................................11
IV EVENT OF DEFAULT AND REMEDIES......................................14
4.01 Event of Default...........................................14
4.02 Acceleration of Maturity...................................14
4.03 Application of the Rents or Proceeds from Foreclosure or
Sale .....................................................15
4.04 Cumulative Remedies; Delay or Omission Not a Waiver........15
4.05 Mortgagee's Remedies Against Multiple Parcels..............16
4.06 No Merger..................................................16
4.07 Insurance Upon Foreclosure.................................16
4.08 Waiver of Statutory Rights.................................17
V MISCELLANEOUS......................................................17
5.01 Notices....................................................17
5.02 Time of Essence............................................17
5.03 Covenants Run with Land....................................17
5.04 GOVERNING LAW..............................................17
5.05 Rights and Remedies Cumulative.............................18
5.06 Severability...............................................18
5.07 Non-Waiver.................................................18
5.08 Headings...................................................18
5.09 Grammar....................................................18
5.10 Deed in Trust..............................................18
5.11 Successors and Assigns...................................18
5.12 Mortgagee in Possession....................................18
5.13 Compliance with Applicable Law.............................18
5.14 Incorporation of Credit Agreement..........................19
5.15 Security Agreement.........................................19
5.16 Additional Provisions......................................21
5.17 Intentionally Deleted......................................22
5.18 Reduction of Secured Amount................................22
5.19 Application of Payments and Repayments.....................22
iii
MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF
LEASES AND RENTS AND FINANCING STATEMENT
THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS, AND
FINANCING STATEMENT ("Mortgage") is made as of July 31, 1998, 1998 by NIEMAND
INDUSTRIES, INC., an Delaware corporation with its principal office at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ as Mortgagor ("Mortgagor"), for the benefit
of First Source Financial, LLP ("First Source"), an Illinois Limited liability
partnership with its principal office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as mortgagee, and as agent for itself, and for and on behalf of
the other Lenders (as hereinafter defined), and as assignee and secured party
(together with any successors or assigns, the "Mortgagee").
I
RECITALS
WHEREAS, Mortgagor is the owner of that certain real property situated
in Perry County, Alabama and has the right to mortgage, grant and convey said
real property;
WHEREAS, Gibraltar Packaging Group, Inc., a Delaware corporation,
Mortgagee, and certain financial institutions (the "Lenders") from time to time
party to the Credit Agreement (as hereinafter defined) have executed of even
date herewith that certain Secured Credit Agreement (together with any and all
renewals, amendments, modifications, supplements, restatements, extensions for
any period, or increases or rearrangements thereof, the "Credit Agreement"),
pursuant to which Credit Agreement the Lenders have made and may in the future
make term and revolving loans and advances and other financial accommodations to
the Borrower (collectively, "Loans"; each, a "Loan") in the aggregate principal
amount of Forty-Two Million and no/100 Dollars ($42,000,000), upon the terms and
subject to the conditions set forth in the Credit Agreement;
WHEREAS, capitalized terms used herein without definitions shall have
the meaning assigned to such terms in the Credit Agreement;
WHEREAS, the Loans are in the form of: (i) a term loan in the aggregate
principal amount of Twenty Five Million and No/100 Dollars ($25,000,000) (the
"Term Loan"), (ii) a revolving credit loan in the aggregate principal amount of
Fifteen Million and No/100 Dollars ($15,000,000) (the "Revolving Credit Loan"),
(iii) a certain Letter of Credit (as defined in Section 1.1 of the Credit
Agreement) up to an amount not to exceed Two Million and No/100 Dollars
($2,000,000);
WHEREAS, the Revolving Credit Loans and Term Loans are evidenced by
certain promissory notes (the "Notes");
WHEREAS, Mortgagor has executed that certain Subsidiary Guaranty of
even date herewith in favor of Mortgagee and the Lenders (the "Guaranty",
together with any and all renewals, amendments, modifications, supplements,
restatements, extensions for any period, or increases or rearrangements
thereof), to secure the "Obligations" (as defined in the Credit Agreement) by
pledging to Mortgagee the capital stock of Mortgagor and its subsidiaries, if
any, and by granting to Mortgagee a security interest in and lien upon all of
its personal and real property;
WHEREAS, Mortgagor wishes to provide further assurance and security to
Mortgagee and as a condition to Mortgagee and Lenders executing the Credit
Agreement, Mortgagee and Lenders are requiring that Mortgagor grant to Mortgagee
a mortgage lien on the Property (as hereinafter defined) to secure the
Mortgagor's obligations under the Guaranty;
WHEREAS, subject to the limitations set forth in Section 5.18 of this
Mortgage, this Mortgage is being given by Mortgagor to secure the performance of
all terms, covenants, conditions, agreements and liabilities of Mortgagor
contained in this Mortgage, the Guaranty, and other Loan Documents (hereinafter,
collectively, the "Obligations");
WHEREAS, Mortgagor derives substantial direct and indirect economic
benefit from the making of the Loans and other benefits to be provided to the
Borrower under the Credit Agreement, and other valuable consideration, the
receipt and adequacy of which are hereby acknowledged; and
WHEREAS, this Mortgage also secures the payment of and includes all
amounts owing in respect of all future or further advances of the Loans as shall
be made at all times, regardless of whether proceeds of the Loans have or shall
be disbursed by Mortgagee herein or its successors or assigns, to and for the
benefit of Mortgagor, its successors or assigns, to the same extent as if such
future advances were made on the date of the execution of this Mortgage. The
total amount of Indebtedness secured by this Mortgage may decrease or increase
from time to time but the total unpaid principal balance so secured at any one
time shall not exceed the lesser of: (i) the maximum principal sum permitted by
the laws of the State in which the Premises are located; or (ii) Eighty-Four
Million and No/100 Dollars ($84,000,000), together with interest thereon and any
and all disbursements made by Mortgagee for the payment of taxes, or insurance
on the Property covered by the lien of this Mortgage and for reasonable
attorneys' fees, loan commissions, service charges, liquidated damages, expenses
and court costs incurred in the collection of any or all of such sums of money.
Such further or future advances shall be considered obligatory advances and the
same shall bear interest at the same rate as specified in the Credit Agreement
unless such interest rate shall be modified by subsequent agreement. The parties
hereby acknowledge and intend that all advances, including future advances
whenever hereafter made, shall be secured by this Mortgage.
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II
THE GRANT
NOW, THEREFORE, subject to the limitations set forth in Section 5.18 of
this Mortgage, in order to secure the payment of the Obligations and the
performance of all of the covenants, provisions, agreements and obligations
contained in this Mortgage or in the Loan Documents and also to secure the
payment of any and all Secured Indebtedness, direct or contingent, that may now
or hereafter become owing from Mortgagor to Mortgagee and the Lenders and the
performance of all other obligations under the Loan Documents, and in
consideration of Ten and No/100 Dollars ($10.00) in hand well and truly paid at
or before the sealing and delivery hereof by Agent, on behalf of the Lenders, to
Mortgagor, the Recitals above stated, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally and firmly bound, Mortgagor hereby GRANTS, BARGAINS,
SELLS, ASSIGNS, RELEASES, ALIENS, TRANSFERS, REMISES, WARRANTS, DEMISES, CONVEYS
and MORTGAGES to Mortgagee and its successors and assigns forever (and grants to
Mortgagee and its successors and assigns forever a continuing security interest
in and to) the Premises described on Exhibit A, and all of its estate, right,
claim and interest therein, together with the following described property, all
of which other property is pledged primarily on a parity with the Premises and
not secondarily (the Premises and the following described rights, interests,
claims and property collectively referred to as the "Property"):
(a) all buildings, structures and other improvements of every
kind and description now or hereafter erected, situated, or placed upon
the Premises (the "Improvements"), together with any and all Personal
Property (as defined in Paragraph (i) below) and all attachments now or
hereafter owned by Mortgagor and located in or on, forming part of,
attached to, used or intended to be used in connection with, or
incorporated in any such Improvements, including all extensions of,
additions to, betterments, renewals of, substitutions for and
replacements for any of the foregoing;
(b) all estate, claim, demand, right, title and interest of
Mortgagor now owned or hereafter acquired, including without
limitation, any after-acquired title, franchise, license, remainder or
reversion, in and to any and all (i) land or vaults lying within the
right-of-way of any street, avenue, way, passage, highway, or alley,
open or proposed, vacated or otherwise, adjoining the Premises; (ii)
alleys, sidewalks, streets, avenues, strips and gores of land
belonging, adjacent or pertaining to the Premises or the Improvements;
(iii) storm and sanitary sewer, water, gas, electric, railway and
telephone services relating to the Premises and the Improvements; (iv)
development rights, air rights, water, water rights, water stock, gas,
oil, minerals, coal and other substances of any kind or character
underlying or relating to the Premises or any part thereof; and (v)
tenements, hereditaments, easements, appurtenances, other rights,
liberties, reservations, allowances and privileges relating to the
Premises or the Improvements or in any way now
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or hereafter appertaining thereto, including homestead and any other
claims at law or in equity;
(c) all leasehold estates and right, title and interest of
Mortgagor in any and all leases, subleases, management agreements,
arrangements, concessions or agreements, written or oral, relating to
the use and occupancy of the Premises or the Improvements or any
portion thereof, now or hereafter existing or entered into
(collectively "Leases");
(d) all rents, issues, profits, royalties, revenue, advantages,
income, avails, claims against guarantors, all cash or security
deposits, advance rentals, deposits or payments given and other
benefits now or hereafter derived directly or indirectly from the
Premises and Improvements under the Leases or otherwise (collectively
"Rents"), subject to the right, power and authority to assign, collect
and apply the Rents;
(e) all right, title and interest of Mortgagor in and to all
options to purchase or lease the Premises or the Improvements or any
portion thereof or interest therein, or any other rights, interests or
greater estates in the rights and properties comprising the Property
now owned or hereafter acquired by Mortgagor;
(f) any interests, estates or other claims of every name, kind
or nature, both in law and in equity, which Mortgagor now has or may
acquire in the Premises and Improvements or other rights, interests or
properties comprising the Property now owned or hereafter acquired;
(g) all rights of Mortgagor to any and all plans and
specifications, designs, drawings and other matters prepared for any
construction on the Premises or regarding the Improvements;
(h) all rights of Mortgagor under any contracts executed by
Mortgagor with any provider of goods or services for or in connection
with any construction undertaken on or services performed or to be
performed in connection with the Premises or the Improvements;
(i) all right, title and interest of Mortgagor in and to all
the following tangible personal property ("Personal Property") owned by
Mortgagor and now or at any time hereafter located in, on or at the
Premises or the Improvements and used or useful in connection
therewith:
(i) all building materials and equipment located upon the
Premises and intended for construction, reconstruction,
alteration, repair or incorporation in or to the Improvements
now or hereafter to be constructed
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thereon, whether or not yet incorporated in such Improvements,
(all of which shall be deemed to be included in the Property
upon delivery thereto);
(ii) all machines, machinery, fixtures, apparatus, equipment
or articles used in supplying heating, gas, electricity,
air-conditioning, water, light, power, plumbing, sprinkler,
waste removal, refrigeration, ventilation, and all fire
sprinklers, alarm systems, protection, electronic monitoring
equipment and devices;
(iii) all window, structural, maintenance and
cleaning equipment and rigs; and
(iv) all fixtures now or hereafter owned by Mortgagor and
attached to or contained in and used or useful in connection
with the Premises or the Improvements. All such property owned
by Mortgagor and placed by it on the Premises or used in
connection with the operation or maintenance shall, so far as
permitted by law, be deemed for the purposes of this Mortgage
to be part of the real estate constituting and located on the
Premises and covered by this Mortgage. As to any of the
property that is not part of such real estate or does not
constitute a "fixture," as such term is defined in the Uniform
Commercial Code of the State (the "Code"), this Mortgage shall
be deemed to be a security agreement under the Code for the
purpose of creating hereby a security interest in property,
which Mortgagor hereby grants to Mortgagee as "secured party"
as defined in the Code. The enumeration of any specific items
of Personal Property set forth herein shall in no way exclude
or be held to exclude any items of property not specifically
enumerated;
(j) all the estate, interest, right, title or other claim or
demand which Mortgagor now has or may hereafter have or acquire with
respect to (i) proceeds of insurance in effect with respect to the
Property and (ii) any and all awards, claims for damages, judgments,
settlements and other compensation made for or consequent upon the
taking by condemnation, eminent domain or any like proceeding, or by
any proceeding or purchase in lieu thereof, of the whole or any part of
the Property, including, without limitation, any awards and
compensation resulting from a change of grade of streets and awards and
compensation for severance damages (collectively "Awards").
TO HAVE AND TO HOLD the Property hereby mortgaged and conveyed or so
intended, together with its rents, issues and profits, unto the Mortgagee, its
successors and assigns, forever, for the uses and purposes herein set forth.
The Mortgagor hereby covenants with the Mortgagee and with the
purchaser at any foreclosure sale that at the execution and delivery hereof,
Mortgagor owns the Property and has good, indefeasible estate therein, in fee
simple; that the Property is free from all encumbrances and
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exceptions to title (and any claim of any other person) other than the Permitted
Liens as defined in Section 1.1 of the Credit Agreement, (said encumbrances and
Permitted Liens are hereinafter collectively referred to as "Permitted
Exceptions"); that it has good and marketable title in and to the Property and
good and lawful right to sell, mortgage and convey the Property; and that
Mortgagor and its successors and assigns shall forever warrant and defend the
Property against all claims and demands whatsoever.
If and when Mortgagor has paid all of the Obligations, to the extent
secured hereby, as provided in Section 5.18 hereof, and there exist no
commitments of the Lender under the Loan Documents which could give rise to
Obligations, then this Mortgage and the estate, right and interest of Mortgagee
in and to the Property shall cease and shall be released by Mortgagee delivering
to Mortgagor a satisfaction of this Mortgage in proper recordable form at the
cost of Mortgagor, but until such time shall remain in full force and effect.
III
GENERAL AGREEMENTS
III.1 Payment of Indebtedness Mortgagor shall pay promptly and when due
all amounts owing in respect of the Obligations in the manner provided in the
Guaranty, this Mortgage or the other Loan Documents.
III.2 Impositions. Mortgagor shall pay immediately, when first due and
owing, all general taxes, special taxes, special assessments, water charges,
sewer charges, and any other charges, fees, taxes, claims, levies, expenses,
liens and assessments, ordinary or extraordinary, governmental or
nongovernmental, statutory or otherwise (all of the foregoing being herein
collectively referred to as "Impositions"), that may be asserted against the
Property or any part thereof or interest therein.
Mortgagor may, in good faith and with reasonable diligence, contest the
validity or amount of any Impositions; provided, that:
(a) Mortgagor shall pay all such Impositions so contested under
protest if such payment is required to prevent such contest from having
the effect of preventing the sale or forfeiture of the Property or any
sub-part or interest;
(b) Mortgagor has notified Mortgagee in writing of the
intention of Mortgagor to prosecute the contest before any Impositions
have been materially increased by any interest, penalties, or costs;
and
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(c) Mortgagor shall diligently prosecute the contest of such
Impositions by appropriate legal proceedings.
III.3 Payment of Impositions by Mortgagee. Upon Mortgagor's failure to
pay the Impositions as provided above, Mortgagee is hereby authorized to make or
advance, in the place and stead of Mortgagor, any payment relating to
Impositions, unless such Imposition is then being contested by Mortgagor
pursuant to Section 3.02. Mortgagee may do so according to any ▇▇▇▇, statement,
or estimate procured from the appropriate public office without inquiry into the
accuracy or the validity of any Impositions, lien, sale, forfeiture, or related
title or claim. Mortgagee is further authorized to make or advance, in place of
Mortgagor, unless such matter is being contested by Mortgagor in accordance with
Section 3.02 or Section 3.08(a), any payment relating to any apparent adverse
title, lien, statement of lien, encumbrance, claim, charge, or payment otherwise
relating to any other purpose herein and hereby authorized (except the Permitted
Exceptions), but not enumerated in this Section, whenever, in Mortgagee's
reasonable judgment and discretion, such advance is necessary or desirable to
protect the full security intended to be created by this Mortgage. Subject to
the limitations set forth in Section 5.18, all such advances and indebtedness
authorized by this Section shall constitute Obligations and shall be repayable
by Mortgagor upon demand with interest at the rate of interest which may be due
and owing from time to time on any loan and payable pursuant to Section 4.2(a)
of the Credit Agreement (the "Default Rate").
III.4 Insurance and Insurance Proceeds. Mortgagor's insurance
requirements shall be as set forth in Section 11.4 of the Credit Agreement.
Mortgagor's rights to insurance proceeds shall be as set forth in Section 7.6 of
the Credit Agreement.
III.5 Condemnation Awards. In the event of any taking of the Property
or any part thereof, in or by condemnation or other eminent domain proceedings
pursuant to any law, general or special, or by reason of the temporary
requisition of the use or occupancy of the Property or any part thereof, by any
governmental authority, civil or military (each, a "Taking"), Mortgagor shall
immediately notify Mortgagee upon receiving notice of such Taking or
commencement of proceedings therefor. All proceeds or any award or payment in
respect of any Taking are hereby assigned and shall be paid to Mortgagee and
Mortgagor shall take all steps necessary to notify the condemning authority of
such assignment. Such award or payment, less the amount of any expenses incurred
in litigating, arbitrating, compromising or settling any claim arising out of
such Taking ("Net Award"), shall be applied in accordance with the provisions of
Section 3.06 hereafter.
III.6 Restoration. Mortgagor's rights with respect to restoring the
Premises with a Net Award of Net Proceeds shall be as set forth in the Credit
Agreement.
III.7 Maintenance of Property Mortgagor shall:
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(a) promptly repair, restore, replace or rebuild any portion of
the Property which may become damaged, destroyed, altered, removed,
severed, or demolished, whether or not proceeds of insurance are
available or sufficient for the purpose, with replacements at least
equal in quality and condition as previously existed, free from any
security interest in, encumbrances on or reservation of title thereto;
(b) keep the Property in good condition and repair, without
waste, and free from mechanics', materialmen's or like liens or claims
except for the Permitted Exceptions and as permitted under the Credit
Agreement; and
(c) not make any material alterations in the Property, except
as permitted or not prohibited by the Credit Agreement.
III.8 Prohibited Liens and Transfers
(a) Except as otherwise provided in the Credit Agreement, and
as provided by operation of the laws of the State, Mortgagor shall not
create, suffer, or permit to be created or filed against the Property
any Mortgage lien or other lien superior or inferior to the lien
created by this Mortgage. To the extent that any lien, privilege or
other security device is created by operation of law, Mortgagor shall
cause such security device to be released as soon as practicable after
its creation. Mortgagor may contest any lien claim arising from any
work performed, material furnished, or obligation incurred by Mortgagor
upon furnishing Mortgagee security and indemnification reasonably
satisfactory to Mortgagee for the final payment and discharge of the
lien.
(b) Except as otherwise provided in the Credit Agreement,
Mortgagor may not sell, lease or convey all or any part of the
Property.
III.9 Stamp Taxes. If at any time the United States government, or any
federal, state, or municipal governmental subdivision, requires Internal Revenue
or other documentary stamps or levies any tax on this Mortgage or on the Notes,
or requires payment of any tax in the nature of or comparable to the United
States Interest Equalization Tax on the Obligations, then Mortgagor shall pay
such tax, including interest and penalties, in the required manner.
III.10 Change in Tax Laws. In the event of the enactment, after the
date of this Mortgage, of any law of the United States of America, or any state
or political subdivision thereof, (i) deducting from the value of the Premises,
for the purpose of taxation, the amount of any lien thereon; (ii) imposing upon
Mortgagee the payment of all or any part of the taxes, assessments, charges or
liens hereby required to be paid by Mortgagor; or (iii) changing in any way the
laws relating to the taxation of mortgages or debts secured by mortgages or
Mortgagor's interest in the Property, or the manner of collection of taxes, so
as to affect this Mortgage or the Obligations; then Mortgagor, upon demand by
Mortgagee, and as required by law, shall pay such taxes, assessments, charges,
or liens or reimburse Mortgagee therefor. If, in the opinion of counsel for
Mortgagee, it
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would be unlawful to require Mortgagor to make such payment or the
making of such payment might result in the imposition of interest beyond the
maximum amount permitted by law, then the applicable provisions of the Credit
Agreement shall apply. Nothing contained in this Section 3.10 shall be construed
as obligating Mortgagor to pay any portion of Mortgagee's federal, state and
local income tax.
III.11 Assignment of Leases and Rents. All right, title, and interest
of Mortgagor in and to all present Leases affecting the Property and including
and together with any and all future Leases, written or oral, upon all or any
part of the Property and together with all of the rents, income, receipts,
revenues, issues, avails and profits from or due or arising out of the Property
are hereby transferred and assigned simultaneously herewith to Mortgagee as
further security for the payment of the Obligations. All future Leases affecting
the Property shall be submitted by Mortgagor to Mortgagee for its approval prior
to execution, which approval shall not be unreasonably withheld or delayed. Each
Lease, including all future Leases shall be subordinate to this Mortgage,
provided that, upon the request of the Mortgagor and the lessee under any such
Lease, Mortgagee shall enter into a Subordination, Nondisturbance and Attornment
Agreement (or similar agreement) with such lessee in form and substance
reasonably satisfactory to Mortgagee, pursuant to which (i) Mortgagee will agree
that so long as such Lease shall be in full force and effect and such lessee is
not in default thereunder, Mortgagee will not disturb, pursuant to a foreclosure
action or otherwise, such lessee's possession under such Lease, and (ii) such
lessee shall agree that if Mortgagee or any future holder of this Mortgage shall
become the owner of the Property by reason of foreclosure of the Mortgage or
otherwise, or if the Property shall be sold as a result of any foreclosure
action or deed in lieu thereof, then such lease shall continue in full force and
effect as a direct lease between such lessee and the then owner of the Property.
Although it is the intention of the parties that the assignment contained in
this Section shall be a present and absolute assignment, it is expressly
understood and agreed, anything to the contrary notwithstanding, that Mortgagee
shall not exercise any of the rights or powers conferred upon it by this Section
until an Event of Default shall occur under this Mortgage. From time to time,
Mortgagor shall furnish Mortgagee with executed copies of each of the Leases and
shall use commercially reasonable efforts to furnish Mortgagee with estoppel
letters from each tenant under each of the Leases in a form satisfactory to
Mortgagee within thirty (30) days after Mortgagee's written demand.
Following the occurrence of an Event of Default (a) Mortgagee shall
have the rights and powers as are provided herein, (b) this Mortgage shall
constitute a direction to each lessee under the Leases and each guarantor
thereof to pay all Rents directly to Mortgagee without proof of the Event of
Default, and (c) Mortgagee shall have the authority, as Mortgagor's
attorney-in-fact (such authority being coupled with an interest and
irrevocable), to sign the name of Mortgagor and to bind Mortgagor on all papers
and documents relating to the operation, leasing and maintenance of the
Property.
If Mortgagor, as lessor under any Lease, shall neglect or refuse to
perform, observe and keep all of the covenants, provisions and agreements
contained in such Lease, then Mortgagee may perform and comply with any such
Lease covenants, agreements and provisions. All costs and
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expenses incurred by Mortgagee in complying with such covenants, agreements, and
provisions shall constitute Obligations and shall be payable upon demand with
interest at the Default Rate.
Mortgagee shall not be obligated to perform or discharge any
obligation, duty or liability under any Lease, and Mortgagor shall and does
hereby agree, except to the extent of Mortgagee's gross negligence or willful
misconduct, to indemnify and hold Mortgagee harmless of and from any and all
liability, loss or damage which it may or might incur under any Lease or under
or by reason of their assignments and of and from any and all claims and demands
whatsoever which may be asserted against it by reason of all alleged obligations
or undertakings on its part to perform or discharge any of the terms, covenants
or agreements contained in such Lease. Should Mortgagee incur any such
liability, loss or damage under any Lease or under or by reason of its
assignment, or in the defense of any claims or demands, the amount thereof,
including costs, expenses and reasonable attorneys' fees, shall, subject to the
limitations set forth in Section 5.18 of this Mortgage, be secured hereby.
Mortgagor shall reimburse Mortgagee therefor immediately upon demand with
interest payable at the Default Rate.
III.12 Releases. Without notice and without regard to the consideration
therefor, and to the existence at that time of any inferior liens, Mortgagee may
release from the lien created hereby all or any part of the Property, or release
from liability any person obligated to repay any Obligations, without affecting
the liability of any party to any of the Notes, this Mortgage, or any of the
other Loan Documents (including without limitation any guaranty given as
additional security) and without in any way affecting the priority of the lien
created hereby. Mortgagee may agree with any liable party to extend the time for
payment of any part or all of the Obligations. Such agreement shall not in any
way release or impair the lien created by this Mortgage or reduce or modify the
liability of any person or entity obligated personally to repay the Obligations,
but shall extend the lien created by this Mortgage as against the title of all
parties having any interest, subject to the Obligations in the Property.
III.13 Further Assurances. Mortgagor agrees that, upon request of
Mortgagee from time to time, it will, at Mortgagor's sole cost and expense,
execute, acknowledge and deliver all such additional instruments and further
assurances of title and will do or cause to be done all such further acts and
things as may reasonably be necessary to fully effectuate the intent of this
Mortgage, including without limitation, reimbursing Mortgagee for the reasonable
costs of appraisals of the Property, to the extent that Mortgagee determines in
good faith that such appraisals are required by any law or any governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law), or any interpretation thereof, including, without limitation, the
provisions of Title XI of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, and any rules promulgated to implement such provisions.
In the event that Mortgagor shall fail to do any of the foregoing, Mortgagee
may, in its sole discretion, do so in the name of Mortgagor, and Mortgagor
hereby appoints Mortgagee as its attorney-in-fact to do any of the foregoing.
III.14 Environmental Provisions.
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(a) For the purposes of this Section the following terms shall have the
following meanings: (i) the term "Hazardous Material" shall mean any material or
substance that, whether by its nature or use, is now or hereafter defined as a
hazardous waste, hazardous substance, pollutant or contaminant under any
Environmental Requirement, or which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous and
which is or contains petroleum, gasoline, diesel fuel or another petroleum
hydrocarbon product; (ii) the "Environmental Requirements" shall collectively
mean all applicable present and future laws, statutes, ordinances, rules,
regulations, orders, codes, licenses, permits, decrees, judgments, directives of
or by any Governmental Authority and relating to or addressing the protection of
the environment or human health; and (iii) the term "Governmental Authority"
shall mean the federal government, or any state or other political subdivision
thereof, or any agency, court or body of the federal government, any state or
other political subdivision thereof, exercising executive, legislative,
judicial, regulatory or administrative functions.
(b) Mortgagor hereby represents and warrants to Mortgagee that to the
best of Mortgagor's knowledge after commercially reasonable inquiry and except
as disclosed in writing to Mortgagee or as set forth on Schedule 10.19 to the
Credit Agreement: (i) no Hazardous Material is currently located at or has been
disposed of on, in, under or about the Property in material violation of any
Environmental Requirement; (ii) no releasing, emitting, leaching, discharging,
dumping or disposing of any Hazardous Material from the Property onto any other
property or from any other property onto or into the Property has occurred or is
occurring in material violation of any Environmental Requirement; (iii) no
notice of violation, lien, complaint, suit, order or other notice with respect
to the Property is presently outstanding under any Environmental Requirement
which, if not resolved, is reasonably likely to have a Material Adverse Effect
(as defined in the Credit Agreement); and (iv) the Property and the operation
thereof are in material compliance with all applicable Environmental
Requirements.
(c) Mortgagor shall comply, and shall use its best efforts to cause all
tenants or other lawful occupants of the Property to comply with all applicable
and material Environmental Requirements, and will not generate, store, handle,
process, dispose of or otherwise use, and will not grant permission to any
tenant or other occupant of the Property to generate, store, handle, process,
dispose of or otherwise use, Hazardous Materials at, in, on, or about the
Property in a manner that is reasonably likely to lead or potentially lead to
the imposition on Mortgagor, Mortgagee or the Property of any material liability
or lien of any nature whatsoever, based upon the assessed value of the Property,
or lien under any Environmental Requirement which is reasonably likely to have a
Material Adverse Effect. Mortgagor shall notify Mortgagee promptly in the event
of any spill or other release of any Hazardous Material at, in, on, under or
about the Property which is required to be reported to a Governmental Authority
under any Environmental Requirement, will promptly forward to Mortgagee copies
of any notices received by Mortgagor relating to alleged violations of any
Environmental Requirement and will promptly pay when due or contest in good
faith within the applicable time periods any fine or assessment against
Mortgagee, Mortgagor or the Property relating to any Environmental Requirement.
If at any time it is it is determined that the operation or use of the Property
by Mortgagor violates any applicable and material Environmental Requirement or
that there are Hazardous Materials located at, in, on, under or about the
Property in violation of any
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applicable Environmental Requirement or that there are Hazardous Materials
located at, in, on, under or about the Property which, under any Environmental
Requirement, require special handling in collection, storage, treatment or
disposal, or any other form of cleanup or corrective action, Mortgagor shall,
within thirty (30) days after receipt of notice thereof from any Governmental
Authority or from Mortgagee, take, at Mortgagor's sole cost and expense, such
actions as may be necessary to fully comply in all material respects with all
applicable Environmental Requirements or contest in good faith the requirement
to take such actions, provided, however, that if such compliance cannot
reasonably be completed within such thirty (30) day period, Mortgagor shall
thereafter diligently and expeditiously proceed to fully comply with or contest
in good faith in a timely fashion all Environmental Requirements.
(d) If Mortgagor fails to timely take or contest, or to diligently and
expeditiously proceed to complete in a timely fashion, any such action described
in subsection (c) above, Mortgagee may, in its reasonable discretion, make
advances or payments toward the performance or satisfaction of any activities
required pursuant to any Environmental Requirement, but shall in no event be
under any obligation to do so. All sums so advanced and paid by Mortgagee
(including, without limitation, reasonable counsel and consultant fees and
expenses, investigation and laboratory fees and expenses, and fines or other
penalty payments) and all sums advanced or paid in connection with any judicial
or administrative investigation or proceeding relating thereto, will
immediately, upon demand, become due and payable from Mortgagor and shall bear
interest at the Default Rate from the date any such sums are so advanced or paid
by Mortgagee until the date any such sums are repaid by Mortgagor to Mortgagee.
Mortgagor will execute and deliver, promptly upon request, such instruments as
Mortgagee may reasonably deem necessary to permit Mortgagee to take any such
action, and such additional notes and mortgages, as Mortgagee may require to
secure all sums so advanced or paid by Mortgagee. If a lien is filed against the
Property by any Governmental Authority resulting from the need to expend or the
actual expending of monies arising from an action or omission, whether
intentional or unintentional, of Mortgagor or for which Mortgagor is
responsible, resulting in the releasing, spilling, leaking, leaching, pumping,
emitting, pouring, emptying or dumping of any Hazardous Material into the waters
or onto land located within or without the State where the Property is located,
then Mortgagor will, within thirty (30) days from the date that Mortgagor
receives notice that such lien has been placed against the Property (or within
such shorter period of time as may be specified by Mortgagee if such
Governmental Authority has commenced steps to cause the Property to be sold
pursuant to such lien), either (a) pay (or otherwise satisfy) the claim and
remove the lien; or (b) contest such lien in good faith; or (c) furnish a cash
deposit, bond, or such other security with respect thereto as is satisfactory in
all respects to Mortgagee and is sufficient to effect a complete discharge of
such lien on the Property.
(e) Mortgagee may, at its option, at intervals of not less than one
year, or more frequently, if Mortgagee reasonably believes that a Hazardous
Material or other environmental condition violates or threatens to violate any
Environmental Requirement, cause an environmental audit of the Property or
portions thereof to be conducted to evaluate Mortgagor's compliance with the
provisions of this Section, and Mortgagor shall cooperate in all reasonable ways
with Mortgagee in connection with any such audit. If such audit discloses that a
violation of an Environmental
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Requirement exists or if such audit was required or prescribed by law,
regulation or governmental or quasi-governmental authority, Mortgagor shall pay
all costs and expenses incurred in connection with such audit; otherwise, the
costs and expenses of such audit shall, notwithstanding anything to the contrary
set forth in this Section, be paid by Mortgagee.
(f) Except for: (a) any Claims (as hereinafter defined) arising as a
result of the gross negligence or wilful misconduct of Mortgagee during the term
of this Mortgage; or (b) any Claims arising as a result of any acts of Mortgagee
or its successors and assigns or the occurrence of any acts by any third parties
after Mortgagee or its successor and assigns take possession of the Property, in
the event Mortgagee takes possession of the Property after an Event of Default,
Mortgagor will defend, indemnify, and hold harmless Mortgagee, and its
employees, agents, officers, and directors, from and against any and all claims,
demands, penalties, causes of action, fines, liabilities, settlements, damages,
costs, or expenses of whatever kind or nature, known or unknown, foreseen or
unforeseen, contingent or otherwise, including, without limitation, reasonable
counsel and consultant fees and expenses, investigation and laboratory fees and
expenses, court costs, and litigation expenses (all of the foregoing
collectively for purposes of this Section the "Claims"), arising out of, or in
any way related to: (i) any breach by Mortgagor of any of the provisions of this
Section; (ii) the presence, disposal, spillage, discharge, emission, leakage,
release, or threatened release of any Hazardous Material which is at, in, on,
under, about, from or affecting the Property, including, without limitation, any
damage or injury resulting from any such Hazardous Material to or affecting the
Property or the soil, water, air, vegetation, buildings, personal property,
persons or animals located on the Property, or in any other property or
otherwise; (iii) any personal injury (including wrongful death) or property
damage (real or personal) arising out of or related to any such Hazardous
Material; (iv) any lawsuit brought or threatened, settlement reached, or order
or directive of or by any Governmental Authority relating to such Hazardous
Material; or (v) any violation of any Environmental Requirement or any policy or
requirement of Mortgagee hereunder. The aforesaid indemnification shall,
notwithstanding any exculpatory or other provision of any other document or
instrument now or hereafter executed and delivered in connection with the loan
evidenced by the Notes and secured by this Mortgage, constitute the personal
recourse undertakings, obligations and liabilities of Mortgagor, and shall
survive the foreclosure or satisfaction of this Mortgage and the discharge of
Mortgagor's other Obligations hereunder.
IV
EVENT OF DEFAULT AND REMEDIES
IV.1 Event of Default. Each of the following shall constitute an event
of default ("Event of Default") under this Mortgage:
(a) The occurrence of an "Event of Default" as such term is defined in
the Credit Agreement (including, if applicable, the expiration of any grace
period provided therein); or
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(b) Failure of Mortgagor to perform or observe any other covenant,
agreement, representation, warranty or other provision contained in this
Mortgage within thirty (30) days after written notice of the default from
Mortgagee to Mortgagor.
IV.2 Acceleration of Maturity. Following the occurrence of an Event of
Default, the Obligations shall become due and payable in accordance with the
terms of the Credit Agreement. Upon acceleration:
(a) Mortgagee's Power of Enforcement. Mortgagee may (i) immediately
sell the Property, either in whole or in separate parcels, as prescribed by
State law, under power of sale, which power is hereby granted to Mortgagee to
the full extent permitted by State law, and thereupon, to make and execute to
any purchaser(s) thereof deeds of conveyance pursuant to applicable law or (ii)
immediately foreclose this Mortgage by judicial or other action permitted by
applicable law. 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 Property
or the occupancy thereof as a homestead, appoint a receiver (to the extent
permitted by applicable law) (the provisions for the appointment of a receiver
and assignment of Rents being an express condition upon which the Loans are
made) for the benefit of Mortgagee, with power to collect the Rents, due and to
become due, during such foreclosure suit and the full statutory period of
redemption. The receiver, out of the Rents, when collected, may pay costs
incurred in the management and operation of the 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 Property, and may pay all or any part of the Obligations or other sums
secured hereby or any deficiency decree entered in such foreclosure proceedings.
Upon or at any time after the filing of a suit to foreclose this Mortgage, the
court in which such suit is filed shall have full power to enter an order
placing Mortgagee in possession of the Property with the same power granted to a
receiver pursuant to this subsection and with all other rights and privileges of
a mortgagee-in-possession under applicable law.
(b) Mortgagee's Other Rights. Mortgagee shall have the right to take
such other steps to protect and enforce its rights, whether by action, suit or
proceeding at law or in equity for the specific performance of any covenant,
condition or agreement contained in this Mortgage, or in aid of the execution of
any power granted in this Mortgage, or for any foreclosure hereunder, or for the
enforcement of any other appropriate legal or equitable remedy or otherwise as
Mortgagee and/or the Trustees shall elect.
IV.3 Application of the Rents or Proceeds from Foreclosure or Sale. In
any foreclosure of this Mortgage by judicial action, or any sale of the Property
under the power of sale herein granted, the proceeds of such foreclosure
proceeding and/or sale and/or the Rents paid to Mortgagee shall, to the extent
permitted by law, be applied as follows:
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First: to the ratable payment of the costs and expenses of such sale,
including reasonable compensation to Mortgagee, its agents and attorneys, and of
any judicial or private proceedings in which such sale may be made, and, subject
to the limitations set forth in Section 5.18 of this Mortgage, of all other
expenses, liabilities and advances made or incurred by Mortgagee and its agents
and attorneys under this Mortgage, and the Guaranty, together with interest at
the Default Rate on such costs, expenses and liabilities and on all advances
made by Mortgagee from the date any such cost, expense or liability is due,
owing or unpaid or any such advance is made, in each case until paid in full.
Second: to the payment of the Obligations, subject to the
limitations set forth in Section 5.18 of this Mortgage.
Third: the surplus, if any, to be paid to whomever may be lawfully
entitled to receive such surplus.
IV.4 Cumulative Remedies; Delay or Omission Not a Waiver. Each remedy
or right of Mortgagee shall not be exclusive of, but shall be in addition to,
every other remedy or right now or hereafter existing at law or in equity. No
delay in the exercise or omission to exercise any remedy or right accruing on
the occurrence or existence of any Event of Default under the Credit Agreement
shall impair any such remedy or right or be construed to be a waiver of any such
Event of Default or acquiescence therein, nor shall it affect any subsequent
Event of Default of the same or different nature. Every such remedy or right may
be exercised concurrently or independently and when and as often as may be
deemed expedient by Mortgagee.
IV.5 Mortgagee's Remedies Against Multiple Parcels. The Obligations
hereby secured are also secured by other properties, lots or parcels covered by
other mortgages or deeds of trust ("Other Mortgages") within and/or outside the
State. If this Mortgage or any of the Other Mortgages is foreclosed upon, or if
judgment is entered upon any Obligations secured hereby, or if Mortgagee
exercises its power of sale, execution may be made upon or Mortgagee may
exercise its power of sale against any one or more of the properties, lots or
parcels and not upon the others, or upon all of such properties or parcels,
either together or separately, and at different times or at the same time, and
execution sales or sales under the power of sale herein granted may likewise be
conducted separately or concurrently, in each case at the election of Mortgagee.
No event of enforcement taking place in any state other than the State shall
(and no failure to prosecute any such other enforcement) in any way stay,
preclude or bar enforcement of this Mortgage and Mortgagee may pursue any or all
of Mortgagee's rights and remedies under this Mortgage to the maximum extent
permitted by State law until the Obligations are paid and discharged in full.
IV.6 No Merger. In the event of a foreclosure of this Mortgage, the
Obligations then due Mortgagee shall not be merged into any decree of
foreclosure entered by the court, and Mortgagee may concurrently or subsequently
seek to foreclose one or more mortgages or deeds of trust which also secure said
Obligations.
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IV.7 Insurance Upon Foreclosure. In case of an insured loss after
foreclosure proceedings have been instituted, the proceeds of any insurance
policy or policies, if not applied in Restoring the Property shall be used to
pay the amount due in accordance with any decree of foreclosure that may be
entered in any such proceedings, and the balance, if any, shall be paid as the
court may direct. In case of the foreclosure of this Mortgage, the court in its
judgment may provide that the judgment creditor may cause a new or additional
loss clause to be attached to each of said policies making the loss thereunder
payable to said judgment creditor; and any such foreclosure judgment may further
provide, unless the right of redemption has been waived, that in case of
redemption under said judgment, pursuant to applicable law, then, and in every
such case, the redemptory may cause the preceding loss clause attached to each
insurance policy to be cancelled and a new loss clause to be attached thereto,
making the loss thereunder payable to such redemptory. In the event of
foreclosure sale, Mortgagee is hereby authorized, but not required, without the
consent of Mortgagor, to assign or cause a receiver to assign any and all
insurance policies to the purchaser at the sale, or to take such other action as
Mortgagee may deem advisable, to cause the interest of such purchaser to be
protected by any of the said insurance policies.
IV.8 Waiver of Statutory Rights. Mortgagor shall not apply for or avail
itself of any appraisement, valuation, redemption, stay, extension, or exemption
laws, or any so-called "moratorium laws," now existing or hereafter enacted, in
order to prevent or hinder the enforcement or foreclosure of this Mortgage, and
Mortgagor hereby waives the benefit of such laws (to the extent permitted by
applicable law). Mortgagor, for itself and all who may claim through or under
it, waives any and all rights to have the Property and estates comprising the
Property marshalled upon any foreclosure of the lien of this Mortgage, and
agrees that any court having jurisdiction to foreclose such lien may order the
Property sold in its entirety. Mortgagor further waives any and all rights of
redemption from foreclosure and from sale under any order or decree of
foreclosure of the lien created by this Mortgage, for itself and on behalf of:
(i) any trust estate of which the Premises are a part, all beneficially
interested persons; (ii) each and every person acquiring any interest in the
Property or title to the Premises subsequent to the date of this Mortgage; and
(iii) all other persons to the extent permitted by the provisions of laws of the
State in which the Premises are located.
V
MISCELLANEOUS
V.1 Notices. Any notice that Mortgagee or Mortgagor may desire or be
required to give to the other shall be in writing and shall be mailed or
delivered in the manner set forth in the Credit Agreement.
V.2 Time of Essence. Time is of the essence of this Mortgage.
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V.3 Covenants Run with Land. All of the covenants of this Mortgage
shall run with the land constituting the Premises.
V.4 GOVERNING LAW. THIS MORTGAGE SHALL BE CONSTRUED AND ENFORCED
ACCORDING TO THE LAWS OF THE STATE OF ILLINOIS (WITHOUT REFERENCE TO CONFLICTS
OF LAWS PROVISIONS THEREOF) PROVIDED, HOWEVER, THAT MATTERS OF CREATION,
PERFECTION, PRIORITY OF ENFORCEABILITY OF ANY AND ALL RIGHTS AND REMEDIES
PROVIDED FOR HEREIN SHALL BE GOVERNED BY THE LAWS OF THE STATE OF INDIANA. TO
THE EXTENT THAT THIS MORTGAGE MAY OPERATE AS A SECURITY AGREEMENT UNDER THE
CODE, MORTGAGEE SHALL HAVE ALL RIGHTS AND REMEDIES CONFERRED THEREIN FOR THE
BENEFIT OF A SECURED PARTY AS SUCH TERM IS DEFINED IN THE CODE.
V.5 Rights and Remedies Cumulative. All rights and remedies in this
Mortgage are cumulative. The holder of the Guaranty and of every other
obligation secured hereby may recover judgment, issue execution therefor, and
resort to every other right or remedy available at law or in equity, without
first exhausting and without affecting or impairing the security of any right or
remedy.
V.6 Severability. If any provision of this Mortgage, or any paragraph,
sentence, clause, phrase, or word, or their application, in any circumstance, is
held invalid, the validity of the remainder of this Mortgage shall be construed
as if such invalid part were never included.
V.7 Non-Waiver. Unless expressly provided in this Mortgage to the
contrary, no consent or waiver, express or implied, by any party, to or of any
breach or default by any other party shall be deemed a consent to or waiver of
the performance by such defaulting party of any other obligations or the
performance by any other party of the same, or of any other, obligations.
V.8 Headings. The headings of sections and paragraphs in this Mortgage
are for convenience or reference only and shall not be construed in any way to
limit or define the content, scope, or intent of the provisions.
V.9 Grammar. As used in this Mortgage, the singular shall include the
plural, and masculine, feminine, and neuter pronouns shall be fully
interchangeable, where the context so requires.
V.10 Deed in Trust. If title to the Property or any part thereof is now
or hereafter becomes vested in a trustee, any prohibition or restriction against
the creation of any lien on the Property shall be construed as a similar
prohibition or restriction against the creation of any lien on or security
interest in the beneficial interest of such trust.
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V.11 Successors and Assigns. This Mortgage shall be binding upon
Mortgagor, its successors, assigns, legal representatives, and all other persons
or entities claiming under or through Mortgagor. The word "Mortgagee", when used
herein, shall include First Source Financial, LLP, in its capacity as
Administrative Agent and as Agent for the Lenders together with its successors,
assigns and legal representatives. "Mortgagor", when used herein, shall include
all such persons and entities and any others liable for the payment of the
Secured Indebtedness, or any part thereof, whether or not they have executed the
notes or this Mortgage.
V.12 Mortgagee in Possession. Nothing contained in this Mortgage shall
be construed as constituting Mortgagee a mortgagee in possession in the absence
of the actual taking of possession of the Property.
V.13 Compliance with Applicable Law. Anything elsewhere herein
contained to the contrary notwithstanding,
(a) in the event that any provision in this Mortgage shall be
inconsistent with any provision of applicable law, the provisions of
applicable law shall take precedence over the provisions of this
Mortgage, but shall not invalidate or render unenforceable any other
provision of this Mortgage that can be construed in a manner consistent
with applicable law; and
(b) if any provision of this Mortgage shall grant to Mortgagee
any rights or remedies upon default of Mortgagor which are more limited
than the rights that would otherwise be vested in Mortgagee under
applicable law in the absence of said provision, Mortgagee shall be
vested with the rights granted under applicable law to the full extent
permitted by law.
V.14 Incorporation of Credit Agreement The terms of the Credit
Agreement are incorporated by reference herein as though set forth in full
detail. In the event of any conflict between the terms and provisions of this
Mortgage and any other Loan Document, the terms and provisions of such other
Loan Document shall govern and control.
V.15 Security Agreement.This Mortgage is hereby deemed to be as well a
Security Agreement for the purpose of creating hereby a security interest
securing the indebtedness secured hereby in and to the Personal Property.
Without derogating any of the provisions of this Mortgage, Mortgagor by this
Mortgage:
(a) grants to Mortgagee a security interest in all of
Mortgagor's right, title and interest in and to all Personal Property,
including, but not limited to, the items referred to above, together
with all additions, accessions and substitutions and all similar
property hereafter acquired and used or obtained for use on, or in
connection with the Property. The Personal Property and all proceeds
thereof are intended to be secured hereby; however, such intent shall
never constitute an express or implied consent on the part of Mortgagee
to the sale of any or all Personal Property;
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(b) agrees that, subject to the limitations contained in
Section 5.18 of this Mortgage, the security interest hereby granted by
this Mortgage shall secure the payment of the Obligations;
(c) agrees not to sell, convey, Mortgage or grant a security
interest in, or otherwise dispose of or encumber, any of the Personal
Property or any of the Mortgagee's right, title or interest therein
except as permitted by the Credit Agreement without first securing
Mortgagee's written consent;
(d) agrees that upon or after the occurrence of any Event of
Default under this Mortgage, Mortgagee shall have all rights and
remedies granted by law and more particularly the Code, including, but
not limited to, the right to take possession of the Personal Property,
and for this purpose may enter upon any premises on which any or all of
the Personal Property is situated without being deemed guilty of
trespass and without liability for damages thereby occasioned (except
for damages caused by Mortgagee's gross negligence or wilful
misconduct), and take possession of and operate said Personal Property
or remove it therefrom. Mortgagee shall have the further right to take
any action it deems necessary, appropriate or desirable, at its option
and in its discretion, to repair, refurbish or otherwise prepare the
Personal Property for sale, lease or other use or disposition, and to
sell at public or private sales or otherwise dispose of, lease or
utilize the Personal Property and any part thereof in any manner
authorized or permitted by law and to apply the proceeds thereof,
subject to the limitations set forth in Section 5.18 of this Mortgage,
toward payment of any costs and expenses, to the extent permitted by
law, thereby incurred by Mortgagee and, subject to the limitations set
forth in Section 5.18 of this Mortgage, toward payment of the
Obligations and all other indebtedness described in this Mortgage, in
such order and manner as is provided in Section 4.03 hereof. To the
extent permitted by law, and only to the extent Mortgagor has waived
any of the following under that certain Subsidiary Security Agreement
of even date herewith by and between Mortgagor and Mortgagee, Mortgagor
expressly waives any notice of sale or other disposition of the
Personal Property and any other rights or remedies of a debtor or
formalities prescribed by law relative to a sale or disposition of the
Personal Property or to exercise any other right or remedy existing
after default hereunder; and to the extent any notice is required and
cannot be waived, Mortgagor agrees that if such notice is deposited for
mailing, postage prepaid, certified mail or registered mail, return
receipt requested, to Mortgagor at the address designated in the first
page of this Mortgage at least fifteen (15) days before the time of
sale or disposition, such notice shall be deemed reasonable and shall
fully satisfy any requirements for giving of said notice; provided that
if Mortgagor has furnished Mortgagee with notice of a change of address
in accordance with Section 5.01, then any such notice shall not be
reasonable unless sent to the new address;
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(e) agrees, to the extent permitted by law and without limiting
any rights and privileges herein granted to Mortgagee, that Mortgagee
may dispose of any or all of the Personal Property at the same time and
place upon giving the same notice provided for in this Mortgage, and in
the same manner as the non-judicial foreclosure sale provided under the
terms and conditions of this Mortgage; and
(f) authorizes Mortgagee to file, in the jurisdiction where
this Mortgage will be given effect, financing statements including
renewal or confirmation thereof, covering the Personal Property; and at
the request of Mortgagee, Mortgagor will join Mortgagee in executing
one or more such financing statement including renewal or confirmation
thereof, pursuant to the Code in a form reasonably satisfactory to
Mortgagee, and will pay the cost of filing the same in all public
offices at any time and from time to time wherever Mortgagee deems
filing or recording of any financing statements including renewal or
confirmation thereof or of this instrument to be desirable or
necessary.
V.16 Additional Provisions. The following provisions shall also
constitute an integral part of this Mortgage. Furthermore, in the event that any
prior provisions of this Mortgage conflict with the following provisions of this
Section, the provisions of this Section shall control and shall be deemed a
modification of or amendment to the section or provision at issue:
(a) Payment of Taxes and Fees. Mortgagor agrees to pay all
transfer taxes, recordation taxes, recording fees, and any other fees
required by or imposed by the State or the county in which the Property
is located in order to record this Mortgage in the Land Records of
▇▇▇▇▇ County.
(b) No Assumption of Obligations. In the event of a foreclosure
of the Property, Mortgagee shall not assume any liability of Mortgagor
for Mortgagor's violation of any environmental laws, statutes, codes,
regulations, or practices and Mortgagor's indemnifications as contained
herein and in the Credit Agreement shall survive said foreclosure.
(c) Expenses of Enforcement; Waiver. Mortgagor agrees to bear
and pay all reasonable expenses (including reasonable attorney fees and
appellate attorney fees), of or incidental to the enforcement of any
provision hereof, or the enforcement, compromise, or settlement of this
Mortgage or the Obligations, and for the curing thereof, or for
defending or asserting the rights and claims of Mortgagee in respect
thereof, by litigation or otherwise. All rights and remedies of
Mortgagee shall be cumulative and may be exercised singly or
concurrently. Notwithstanding anything herein contained to the
contrary, Mortgagor to the extent permitted by applicable law: (i)
hereby waives trial by jury; (ii) will not (a) at any time insist upon,
or plead, or in any manner whatever claim or take any benefit or
advantage of any stay or execution or moratorium law, any exemption for
execution of sale of the Property or any part thereof, wherever
enacted, now or at any time hereafter enforced, which may affect the
covenants and terms of
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performance of this Mortgage, nor (b) claim, take or insist upon any
benefit or advantage of any law now or hereafter enforced providing for
the evaluation or appraisal of the Property, or any part thereof, prior
to any sale or sales thereof which may be made pursuant to any
provision herein, or pursuant to the decree, judgment or order of any
court of competent jurisdiction, nor (c) after any such sale or sales,
claim, or exercise any right under any statute heretofore or hereafter
enacted to redeem the property so sold or any part thereof; (iii)
hereby expressly waives all benefit or advantage of any such law or
laws including but not limited to a waiver of the equity of redemption,
statutory right of redemption, and any other statutory or common law
right of redemption, homestead, dower, marital share and all other
exemptions; and (iv) covenants not to hinder, delay or impede the
execution of any power herein granted or delegated to Mortgagee, but to
suffer and permit the execution of every power as though no such laws
or laws had been made or enacted. Mortgagor, for itself and all who may
claim under it, waives, to the extent that it lawfully may, all right
to have the Property marshalled upon any foreclosure hereof.
V.17 Intentionally Deleted.
V.18 Reduction of Secured Amount. The Secured Amount shall be reduced
only by the last and final sums that the Mortgagor repays with respect to the
Obligations and shall not be reduced by any intervening repayments of any of the
Obligations by the Mortgagor. As of the date hereof, the total amount of the
Obligations exceeds the Secured Amount, so that the Secured Amount represents
only a portion of the Obligations actually outstanding and due Mortgagee.
V.19 Application of Payments and Repayments. So long as the balance of
the Obligations exceeds the Secured Amount, any payments and repayments of the
Obligations by Mortgagor shall not be deemed to be applied against, or to
reduce, the portion of the Obligations secured by this Mortgage. Such payments
shall instead be deemed to reduce only such portions of the Obligations as are
secured by mortgages encumbering real property located outside the State of
Indiana, which mortgages secure the entire Obligations (except to the extent, if
any, that specific mortgages in such states contain specific limitations on the
amount secured).
[Signature and Notary Page Follows]
-21-
IN WITNESS WHEREOF, Mortgagor has duly signed and delivered this
Mortgage as of the date first above written.
Attest:: Mortgagor:
RIDGEPAK CORPORATION D/B/A
FLASHFOLD CARTON CO., INC., an
Illinois corporation
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Assistant Secretary
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Printed:
----------------------------- By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Printed:
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Its: Vice President
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