EXHIBIT 99.6
[PG NUMBER]
MORTGAGE AND SECURITY AGREEMENT
This Mortgage and Security Agreement ("Mortgage") made as of August 31,
2000 between ONKYO AMERICA, INC., an Indiana corporation, having its principal
office at 3030 Barker Drive, Columbus, Indiana 47201 (together with its
successors and assigns "Mortgagor"), and GMAC BUSINESS CREDIT, LLC, a Delaware
limited liability company, having its principal office at 300 Galleria
Officentre, Suite 110, Southfield, Michigan 48034 ("Mortgagee"), in its capacity
as agent for the Lenders (as defined below).
W I T N E S S E T H:
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WHEREAS, Mortgagor, as successor by merger to Onkyo Acquisition
Corporation, an Indiana corporation, entered into that certain Credit Agreement
dated as of August 31, 2000 (as amended, modified or restated from time to time,
the "Credit Agreement") with the Mortgagee in its capacity as agent for the
lenders party thereto (the "Lenders"), and the Lenders, pursuant to which the
Lenders have made a loan to Mortgagor and agreed to make additional loans to
Mortgagor in the aggregate principal amount of Thirty One Million Two Hundred
Thirty Thousand and 00/100 Dollars ($31,230,000.00) (the "Loan"), as evidenced
by (i) those certain Revolving Notes of even date herewith executed by Mortgagor
in favor of the Lenders in the maximum aggregate principal amount of Twenty
Million and 00/100 Dollars ($20,000,000.00) (as amended, modified, substituted,
or restated from time to time, the "Revolving Notes"), (ii) those certain Term
Notes executed by Mortgagor in favor of the Lenders in the original principal
amount of up to Five Million Two Hundred Thirty Thousand and 00/100 Dollars
($5,230,000.00) (as amended, modified, substituted or restated from time to
time, the "Term Note As"), and (iii) those certain Term Notes executed by
Mortgagor in the original aggregate principal amount of Six Million and 00/100
Dollars ($6,000,000.00) (as amended, modified, substituted or restated from time
to time, the "Term Note Bs") (the Revolving Notes, each Term Note A and each
Term Note B, as each may be amended, substituted, restated or modified from time
to time, are hereafter collectively referred to as, the "Notes"), whereby
Mortgagor promises to pay the said principal amount, or so much thereof as may
be advanced by the holder or holders of the Notes from time to time, together
with interest thereon, from the time and at the rate set forth therein at the
office of Mortgagee, or at such other place as may be designated in writing by
the legal holder or holders thereof, until August 30, 2003 (the "Maturity Date")
at which time the principal sums secured hereby and all accrued interest thereon
shall immediately become due and payable; and
WHEREAS, it was an express condition to Mortgagee, on behalf of the
Lenders, consenting to the aforesaid merger under the Credit Agreement, and
permitting Mortgagor to assume the liabilities and obligations thereof and to
receive the benefits of the financing thereof, that Mortgagor enter into this
Mortgage.
NOW, THEREFORE, Mortgagor, to secure (i) the payment of all principal
and interest as and when the same become due and payable under the Notes
(whether by lapse of time, acceleration or otherwise); (ii) the payment of all
other indebtedness, obligations and liabilities which this Mortgage secures
pursuant to any of its terms, including but not limited to, all indebtedness,
obligations and liabilities of Mortgagor after giving effect to the Merger; and
(iii) the performance of all covenants and agreements (and the accuracy of all
representations and warranties) contained in this Mortgage and in any other
instrument securing the Notes including, without limitation, the Credit
Agreement (the Notes, the Credit Agreement, this Mortgage and any other
instrument securing the Notes or executed and delivered in connection with the
indebtedness represented by the Notes, together with any amendments,
modifications or restatements thereof, are hereinafter collectively referred to
as the "Loan Documents"), does hereby Mortgage and Warrant unto Mortgagee, its
successors and assigns forever, the real estate described on Exhibit A attached
hereto and all of its estate, right, title and interest therein (the "Real
Estate") situated, lying and being in the City of Columbus, County of
Bartholomew, and State of Indiana, together with all of Mortgagor's right, title
and interest in and to the following described property now owned or hereinafter
acquired (which property, together with the Real Estate, is collectively
referred to as, the "Premises"), to wit:
(1) any after-acquired title or reversion in and to the beds of any vaults,
streets, avenues, alleys and other passageways adjoining the Real Estate.
(2) all estates, appurtenances, tenements, easements, licenses, franchises,
royalties and hereditaments, all gas, oil and mineral rights and privileges, all
riparian, irrigation and drainage rights and privileges and all other rights,
liberties and privileges thereof or in any way now or hereafter appertaining,
including any after-acquired title, franchise or license and the reversion and
reversions and remainder and remainders thereof, relating to or benefiting the
Real Estate;
(3) all of Mortgagor's interest and rights as lessor in and to all leases now or
hereafter affecting the Premises or any part thereof and all rents, issues,
proceeds and profits accruing and to accrue from the Premises, whether payable
pursuant to any present or future lease or otherwise growing out of any
occupancy or use of the Premises (which are pledged primarily and on a parity
with the Real Estate and not secondarily);
(4) all proceeds or sums payable in lieu of or as compensation for the loss of
or damage to the Premises, all rights in and to all present and future fire and
other hazard insurance policies pertaining to the Premises, any and all monies
or other assets (including prepaid insurance policies) at any time on deposit
with Mortgagee or a depository designated by Mortgagee (whether deposited by or
on behalf of Mortgagor or anyone else) pursuant to any of the provisions of this
Mortgage and all awards paid or to be paid in connection with or in lieu of any
condemnation, eminent domain, change of grade or similar proceeding for the
taking or for the degradation in the value of all or any part of the Premises;
(5) all buildings and improvements of every kind and description now or
hereafter erected or placed on the Real Estate and all materials intended for
the construction, reconstruction, alteration and repair of any such buildings
and improvements, all of which materials shall be deemed to be included within
the Premises immediately upon the delivery thereof to the Premises;
(6) all fixtures and personal property now or hereafter owned by Mortgagor and
attached to or contained in and used in connection with the Premises including,
but not limited to, heating, cooling, ventilating, communication and security
equipment, pipes, pumps, tanks, sprinklers and other plumbing equipment and
fixtures, lighting, wires, conduit and other electrical equipment and fixtures,
boilers, ranges, furnaces, oil burners and units thereof, vacuum cleaning
systems, elevators, escalators, engines, motors and other mechanical equipment
and fixtures, awnings, screens, storm doors, windows and window treatments,
stoves, refrigerators and other appliances and equipment, partitions, mantels,
cabinets and other millwork, rugs, carpets, and other floor coverings, furniture
and furnishings used in the operations of the Premises and all additions thereto
and renewals or replacements thereof or articles in substitution therefor,
whether or not the same are or shall be attached to any building or buildings in
any manner, it being mutually agreed, intended and declared that all the
aforesaid property shall, so far as permitted by law, be deemed to form a part
and parcel of the Premises and for the purpose of this Mortgage to be real
estate and covered by this Mortgage; provided, however, that the provisions of
this paragraph shall not apply or attach to the trade fixtures or personal
property of any tenant on the Premises; and
(7) all judgments, awards of damages, settlements and other compensation
heretofore or hereafter made resulting from condemnation proceedings or the
taking of the Real Property or any part thereof or any building or other
improvement now or at any time hereafter located thereon or any easement or
other appurtenance thereto under the power of eminent domain, or any similar
power or right (including any award from the United States Government at any
time after the allowance of the claim therefor, the ascertainment of the amount
thereof and the issuance of the warrant for the payment thereof), whether
permanent or temporary, or for any damage (whether caused by such taking or
otherwise) to said property or any part thereof or the improvements thereon or
any part thereof, or to any rights appurtenant thereto, including severance and
consequential damage, and any award for change of grade of streets
(collectively, "Condemnation Awards");
(8) TO HAVE AND TO HOLD the same unto the Mortgagee, its successors and assigns
forever, for the purposes and uses herein set forth.
MORTGAGOR FURTHER COVENANTS AND AGREES AS FOLLOWS:
1. Payment of Principal and Interest. Mortgagor shall promptly pay when due all
indebtedness, including principal and interest, under the Notes and shall duly
and promptly perform and observe all of the terms, provisions, covenants and
agreements on the Mortgagor's part to be performed or observed under the Loan
Documents.
2. Tax and Insurance Deposits. Upon request of Mortgagee, Mortgagor shall
deposit with Mortgagee, or a depositary designated by Mortgagee, concurrently
with and in addition to the monthly installments of interest due under the Notes
until the indebtedness evidenced by the Notes is paid, the following: a sum
equal to all real estate taxes and assessments next due on the Premises (as
estimated from time to time by Mortgagee in its reasonable discretion) divided
by the number of months to elapse for which deposits will be made hereunder to
and including the month next preceding the month when such taxes will become due
and payable and a sum equal to the amount of the premium or premiums that will
next become due and payable to replace or renew the insurance policies required
to be maintained by Mortgagor under this Mortgage (as estimated from time to
time by Mortgagee in its reasonable discretion) divided by the number of months
to elapse for which deposits will be made hereunder to and including the month
next preceding the expiration date of the policy or policies to be replaced or
renewed. All such payments described in this Section shall be held by Mortgagee
or by the depositary designated by Mortgagee in trust without accruing or
without any obligation arising for the payment of interest. If the funds so
deposited are insufficient to pay, when due, all taxes and premiums as
aforesaid, Mortgagor shall, within ten (10) days after written demand therefor
from Mortgagee, deposit such additional funds as may be necessary to pay such
taxes and premiums. If the funds so deposited exceed the amount required to pay
such taxes and premiums, the excess shall be credited against the deposit or
deposits next due hereunder. Neither Mortgagee nor the depositary shall be
liable for any failure to make any payments of taxes or premiums unless
Mortgagor shall have supplied thirty (30) days prior to delinquency to Mortgagee
or to the depositary the bill or bills for such taxes or insurance premiums;
provided, however, that Mortgagee may at its option make or cause the depositary
to make any such application of the aforesaid deposits without any direction or
request to do same by Mortgagor. Mortgagee, by written notice to Mortgagor, may
suspend and later reinstate, in whole or in part, the application of this
Section as often as it may determine.
3. Warranty of Title. At the time of the recordation this Mortgage, Mortgagor is
well seized of an indefeasible estate in fee simple in the Premises subject only
to the matters set forth in Exhibit B attached hereto and hereby made a part
hereof (the "Permitted Exceptions"), and Mortgagor has good right, full power
and lawful authority to convey, mortgage and grant a security interest in all of
the same in the manner and form contemplated and provided under the Loan
Documents. Said title of Mortgagor in the Premises is free and clear of all
liens, charges, easements, covenants, conditions, restrictions and encumbrances
whatsoever, other than the Permitted Exceptions, including, as to the personal
property and fixtures, security agreements, conditional sales contracts and
anything of a similar nature; provided, however, certain of the personal
property will be subject to the junior lien in favor of the Wilmington Trust
Company and George Jeff Mennen, Co-Trustees, u/a dated November 25, 1970 with
George S. Mennen FBO John Henry Mennen, or its assigns (the "Mennen Trust")
pursuant to that certain Subordinated Loan and Security Agreement by and among
Mortgagor and the Mennen Trust (the "Subordinate Lien"), which Subordinate Lien
shall be junior and subordinate to the Mortgagee's security interest in such
personal property pursuant to the terms and conditions of that certain
Subordination Agreement by and among Mortgagee, Mortgagor and the Mennen Trust.
Mortgagor shall and will forever defend the title to the Premises against the
claims of all persons whomsoever.
4. Taxes and Other Charges. Mortgagor shall promptly pay, when due and before
the imposition of any penalty, all general taxes, special taxes, special
assessments, water charges, sewer service charges, association charges and all
other charges of whatever kind, whether ordinary or extraordinary or public or
private, which may be assessed, levied or imposed against the Premises or any
part thereof and shall furnish to Mortgagee official receipts therefor within
ten (10) days after payment thereof; provided, however, that if an Event of
Default hereunder has occurred and Mortgagee has not suspended the monthly
deposits for taxes required under this Mortgage, Mortgagee may, at its option,
either make such deposits available to Mortgagor for the payments required under
this Section or make such payments on behalf of Mortgagor. Mortgagor shall also
pay, when due and before the imposition of any penalty, all charges incurred for
utility service and scavenger service to the Premises whether or not such
charges are or will become liens against the Premises.
5. Insurance. Mortgagor, at its expense, shall obtain and maintain
insurance coverage in accordance with the terms of the Credit
Agreement.
6. Damage to or Destruction of Mortgaged Premises.
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(a) Notice. In case of any material damage to or destruction of the
Premises or any part thereof in excess of $25,000.00, Mortgagor shall
promptly give written notice thereof to Mortgagee, generally
describing the nature and extent of such damage or destruction.
(b) Restoration. In case of any damage to or destruction of the
Premises or any part thereof, Mortgagor, whether or not the insurance
proceeds, if any, received on account of such damage or destruction
shall be sufficient for the purpose, at Mortgagor's expense, will
promptly commence and complete (subject to unavoidable delays
occasioned by strikes, lockouts, acts of God, inability to obtain labor
or materials, governmental restrictions and similar causes beyond the
reasonable control of Mortgagor) the restoration, replacement or
rebuilding of the Premises as nearly as possible to its value,
condition and character immediately prior to such damage or
destruction, provided, however, Mortgagor shall have no duty to
rebuild, restore or replace if insurance proceeds are applied as a
prepayment on the Notes pursuant to this Section 6 and as a result
thereof insurance proceeds are insufficient to pay the cost of such
rebuilding, restoration or replacement.
(C) Adjustment of Loss. Mortgagor hereby authorizes Mortgagee, at
Mortgagee's option, to adjust and compromise any losses under any
insurance afforded, but unless Mortgagee elects to adjust the losses as
aforesaid, said adjustment and/or compromise shall be made by
Mortgagor, subject to final approval of Mortgagee in the case of losses
exceeding $25,000.
(d) Application of Insurance Proceeds. Net insurance proceeds received
by Mortgagee under the provisions of this Mortgage or any instruments
supplemental hereto and thereto or under any policy or policies of
insurance covering the Premises or any part thereof shall first be
applied as a prepayment on the Notes and any other indebtedness hereby
secured (and Mortgagee is hereby irrevocably authorized and directed to
make such an application whether or not the Notes or any other
indebtedness hereby secured may then be due or otherwise adequately
secured) and shall thereafter be applied to the reduction of any other
indebtedness hereby secured; provided, however, that to the extent such
proceeds exceed $25,000.00, such proceeds at the sole option of
Mortgagee may be made available for the restoration of the portion of
the Premises damaged or destroyed if the following conditions are
satisfied to the reasonable satisfaction of the Mortgagee: the effect
of the damage to or destruction of the Premises giving rise to receipt
of the insurance proceeds is not to terminate, or a lessee does not
exercise any option to terminate, any lease of all or any portion of
the Premises; no Event of Default, or event which, with the lapse of
time, the giving of notice, or both, would constitute an Event of
Default, shall have occurred or be continuing (and if such an event
shall occur during restoration Mortgagee may, at its election, apply
any insurance proceeds then remaining in its hands to the reduction of
the indebtedness evidenced by the Notes and the other indebtedness
hereby secured); Mortgagor shall have submitted to Mortgagee plans and
specifications for the restoration which shall be reasonably
satisfactory to Mortgagee; Mortgagor shall submit to Mortgagee fixed
price contracts with good and responsible contractors and materialmen
covering all work and materials necessary to complete restoration and
providing for a total completion price not in excess of the amount of
insurance proceeds available for restoration, or, if a deficiency shall
exist, Mortgagor shall have deposited the amount of such deficiency
with Mortgagee; and Mortgagor shall have obtained a waiver of the right
of subrogation from any insurer under such policies of insurance who at
that time claims that no liability exists as to Mortgagor or the
insured under such policies. Any insurance proceeds to be released
pursuant to the foregoing provisions may at the option of Mortgagee be
completed and in place and such disbursements may at Mortgagee's option
be made directly to Mortgagor or to or through any contractor or
materialman to whom payment is due or to or through a construction
escrow to be maintained by a title insurer acceptable to Mortgagee.
Mortgagee may impose such further conditions upon the release of
insurance proceeds (including the receipt of title insurance) as are
customarily imposed by prudent construction lenders to insure the
completion of the restoration work free and clear of all liens or
claims for lien. All title insurance charges and other reasonable costs
and expenses paid to or for the account of Mortgagor in connection with
the release of such insurance proceeds shall constitute so much
additional indebtedness hereby secured to be payable fifteen (15) days
after invoice sent to Mortgagor with interest at the rate applicable to
the Notes at the time such costs or expenses are incurred. Mortgagee
may deduct any such reasonable costs and expenses from insurance
proceeds at any time standing in its hands. If Mortgagor fails to
request that insurance proceeds be applied to the restoration of the
improvements or if Mortgagor makes such a request but fails to complete
restoration within a reasonable time, Mortgagee shall have the right,
but not the duty, to restore or rebuild said Premises or any part
thereof for or on behalf of Mortgagor, after notifying Mortgagor of
such election, in lieu of applying said proceeds to the indebtedness
hereby secured and for such purpose may do all necessary acts, funds
for the purpose of restoration, all such additional funds to constitute
part of the indebtedness hereby secured payable upon demand with
interest at the Default Rate as defined in the Notes.
7. General Covenants.
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(a) Mortgagor shall keep and maintain the Premises and every part thereof in
good repair and condition (ordinary wear and tear excepted) making such repairs
and replacements as may from time to time be necessary or appropriate to keep
the Premises in at least as good condition as that existing on the date of this
Mortgage excepting normal wear and tear and Mortgagor warrants and represents
that such Premises are currently in good repair and condition, complete, within
a reasonable period of time, any improvements now or, with the consent of
Mortgagee, hereafter in the process of being constructed on the Real Estate, to
the extent that proceeds of insurance are available and Mortgagee allows the
proceeds to be disbursed to Mortgagor, repair, restore or replace any fixtures
and personal property owned by Mortgagor now or hereafter on the Real Estate
which may be or become damaged or destroyed to a condition or with items at
least equal to those repaired, restored or replaced and, if subject to the lien
of this Mortgage, free of any security interest therein, encumbrance thereon or
reservation of title thereto, comply with all laws, ordinances, regulations and
orders of any federal, state, county or municipal authority and with any
restriction or requirement contained in any recorded instrument relating to the
Premises or to the use thereof, comply with any conditions and requirements
necessary to maintain the insurance required under this Mortgage, maintain any
and all rights, licenses, permits, privileges, franchises or concessions,
whether public or private, which are or become applicable to the Premises or
which are granted to Mortgagor in connection with any existing or planned
improvement or use of the Premises, not erect, demolish, remove or alter in any
material manner any improvement exceeding $25,000.00 on the Real Estate except
as may be required by law or as may be necessary for any repairs or replacements
expressly required under this Mortgage without the written consent of Mortgagee,
which consent shall not be unreasonably withheld or delayed, not remove, sever,
sell or mortgage any fixtures or personal property of Mortgagor on the Real
Estate except as may be required by law or in the ordinary course of business
without the prior written consent of Mortgagee, which consent shall not be
unreasonably withheld or delayed, not permit, suffer or commit any waste,
impairment or deterioration of the Premises or any part thereof (ordinary wear
and tear, acts of God and other events beyond Mortgagor's control excepted), not
permit or conduct either the generation, treatment, storage or disposal of
hazardous waste, as defined in the Resource Conservation and Recovery Act, or
the disposal on the Premises of petroleum or any hazardous substance, as defined
in the Comprehensive Environmental Response, Compensation, and Liability Act,
and shall perform all remedial actions necessary as the result of the presence
of any such hazardous wastes, petroleum or hazardous substances on, at or near
the Premises, regardless of by whom caused, not abandon or vacate the Premises
or suffer or permit the Premises to be abandoned, not use or suffer or permit
the use of the Premises for a purpose other than that for which it is used on
the date of this Mortgage except as may be required by law without the prior
written consent of Mortgagee, which consent shall not be unreasonably withheld
or delayed, not cause, suffer or permit the Premises, except as may be mandated
by any governmental entity, to be or become subject to any covenants or
restrictions not existing on the date of this Mortgage or initiate, suffer or
permit any change in any existing covenant, restriction, zoning ordinance or
other private or public restriction impacting upon the uses which may be made of
or the improvements which may be placed upon, the Premises and shall promptly
notify Mortgagee of and appear in and defend, at its sole cost and expense, any
proceeding to impose or change any such covenants and restrictions and not
subdivide the Premises or subject the Premises to the provisions of the
condominium laws of the state in which the Premises are located.
8. Liens and Encumbrances.
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Mortgagor shall keep the Premises free and clear of liens by mechanics
and materialmen and free and clear of all other liens, charges and encumbrances
excepting, however, any lien or encumbrance consented to in writing by Mortgagee
and excepting the lien of real estate taxes not yet due and payable and
excepting Permitted Encumbrances. Mortgagor shall promptly pay and discharge any
lien or encumbrance attaching to the Premises and not permitted under this
Section or deposit with Mortgagee a bond or other security reasonably
satisfactory to Mortgagee and sufficient to protect Mortgagee against any loss
or damage arising out of such lien or encumbrance upon receiving notice thereof
and shall pay when due or diligently contest any indebtedness or other charge
secured by any lien or encumbrance permitted under this Section. Mortgagor shall
observe and perform all covenants and obligations required to be observed or
performed by Mortgagor under any document creating or evidencing any lien or
encumbrance permitted by this Section and any failure of Mortgagor to observe or
perform any such covenant or obligation shall be an Event of Default by
Mortgagor under this Mortgage. Upon request by Mortgagee, Mortgagor shall
deliver to Mortgagee satisfactory evidence of any payment or payments required
under this Section.
9. Transfer of Ownership.
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If there shall occur or Mortgagor shall make or permit or contract to
make or permit, whether voluntary, involuntary, by operation of law or
otherwise, any sale, assignment, transfer, encumbrance or lease of the Premises,
or any portion thereof or interest therein or any interest in or under any
entity which holds title to the Premises, except as otherwise permitted in the
Credit Agreement, Mortgagee, at its option and upon notice to Mortgagor, may
declare all indebtedness secured by this Mortgage immediately due and payable
and, in the absence of immediate payment thereof by Mortgagor, may pursue any
and all rights and remedies available to Mortgagee under this Mortgage in the
event of a default by Mortgagor.
10. Additional Taxes.
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If, at any time, the federal or any state or local government, or any of their
subdivisions, shall levy, assess or impose any documentary, interest
equalization or other tax, assessment or charge on this Mortgage or on the
indebtedness secured by this Mortgage, or shall impose upon Mortgagee any tax,
assessment, charge or lien required, on the date of this Mortgage, to be paid by
Mortgagor (either by deducting from the value of the Premises, or any part
thereof, for the purposes of taxation any lien or encumbrance thereon or
changing in any way the laws relating to the taxation of Mortgagor's interest in
the Premises), Mortgagor shall, upon demand by Mortgagee, promptly pay or
reimburse Mortgagee for the payment of such tax, assessment, charge or lien and
deliver evidence of such payment to Mortgagee; provided, however, that if in the
opinion of counsel for Mortgagee it might be unlawful to require Mortgagor to
make such payment or the making of such payment might be deemed to be the
payment of interest beyond the maximum amount permitted by law, then at the
option of Mortgagee and upon notice to Mortgagor, Mortgagee may declare all
indebtedness secured by this Mortgage immediately due and payable and, in the
absence of immediate payment thereof by Mortgagor, Mortgagee may pursue any and
all rights and remedies available to Mortgagee under this Mortgage in the event
of a default by Mortgagor. Notwithstanding the foregoing, Mortgagor shall not be
obligated to pay any portion of Mortgagee's federal, state , local income tax,
inheritance tax or franchise tax or any other tax based upon the net income of
Mortgagee.
11. Mortgagee's Performance of Defaulted Acts. In an Event of Default by
Mortgagor of any of its obligations under this Mortgage, Mortgagee may, but need
not, make any payment or perform any act required of Mortgagor under the Notes,
the Credit Agreement or under this Mortgage in any form and in any manner deemed
expedient by Mortgagee. By way of illustration and not in limitation of the
foregoing, Mortgagee may, but need not, make full or partial payment or payments
of principal or interest on prior encumbrances, if any, purchase, discharge,
compromise or settle any tax lien or other prior or junior lien, claim, title or
other charge, redeem from any tax sale or forfeiture affecting the Premises or
contest any tax or assessment. All monies paid for any purpose authorized in
this Section and all expenses paid or incurred in connection therewith,
including reasonable attorneys' fees, and any other monies advanced by Mortgagee
to protect the Premises and the lien hereof, shall be additional indebtedness
secured by this Mortgage and shall be immediately due and payable by Mortgagor
to Mortgagee without notice and with interest thereon at the rate applicable
under the Notes after an Event of Default thereunder. Inaction by Mortgagee
shall never be considered as a waiver of any right accruing to Mortgagee under
this Section on account of any default of Mortgagor under this Mortgage.
12. Eminent Domain. If all or any part, other than an immaterial portion (as
determined by Mortgagee in the exercise of its reasonable discretion) of the
Premises shall be taken through condemnation (which term when used herein shall
include any damage or taking by any governmental authority and any transfer by
private sale of lieu thereof) and if in Mortgagee's judgement such taking causes
a material adverse impact on the Premises, the entire indebtedness secured
hereby shall, at the option of Mortgagee, become immediately due and payable.
Mortgagor acknowledges that Condemnation Awards have been assigned to Mortgagee,
which awards Mortgagee is hereby irrevocably authorized to collect and receive,
and to give appropriate receipts and acquittances therefor and at Mortgagee's
option, to apply the same toward the payment of the amount owing on account of
the indebtedness hereby secured in such order of application as Mortgagee may
elect and whether or not the same may then be due and payable or otherwise
adequately secured. In the event that any proceeds of a Condemnation Award shall
be made available to the Mortgagor for restoring the premises so taken,
Mortgagor hereby covenants to promptly commence and complete such restoration of
the Premises as nearly as possible to its value, condition and character
immediately prior to such damage or destruction. If Mortgagee makes condemnation
proceeds available for such restoration, the criteria set forth in Paragraph
6(d) above shall apply to such proceeds. Mortgagor covenants and agrees that
Mortgagor will give Mortgagee immediate notice of the actual or threatened
commencement of any proceedings under condemnation or eminent domain affecting
all or any part of the Premises including any easement therein or appurtenance
thereof or severance and consequential damage and change in grade of streets,
and will deliver to Mortgagee copies of any and all papers served in connection
with any such proceedings. Mortgagor further covenants and agrees to make,
execute and deliver to Mortgagee, at any time or times upon request, free, clear
and discharged of any encumbrances of any kind whatsoever, any and all further
assignments and/or instruments deemed necessary by Mortgagee for the purpose of
validly and sufficiently assigning all awards and other compensation heretofore
and hereafter to be made to Mortgagor for any taking, either permanent or
temporary, under any such proceeding.
13. Acknowledgment of Debt. Mortgagor shall execute and deliver to Mortgagee,
from time to time upon request by Mortgagee, a written statement, duly
acknowledged, verifying the total unpaid indebtedness secured by this Mortgage
and disclosing whether any alleged offsets or defenses exist against such
indebtedness.
14. Rents and Leases.
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(a) Approval of Leases. Mortgagee shall have the right to approve all new leases
covering space in the Premises, including the form and content of each such
lease and the tenant or tenants thereunder, and, without limiting the generality
of the foregoing, Mortgagor shall not, without Mortgagee's prior written
consent, enter into any lease or permit any tenancy of all or any portion of the
Premises, execute an assignment or pledge of any rents from the Premises or of
any lease or tenancy of all or any portion of the Premises (except as security
for the indebtedness secured by this Mortgage), accept any installment of rent
more than thirty (30) days before the due date of any such installment, (iv)
agree to any material amendment to or change in the terms of any lease or
tenancy previously approved by Mortgagee or (v) permit or consent to any
assignment of any lease or tenancy or any sublease of any lease or tenancy of
all or any portion of the Premises.
(15) Obligations of Mortgagor. Except for (x) extensions of the terms of any
leases with respect to the Premises, (y) increases in the amount of rent to be
paid by tenants under any leases with respect to the Premises, and (z)
non-material amendments, supplements, modifications, changes or alterations in
the ordinary course of business to any leases with respect to the Premises,
Mortgagor shall at all times promptly and faithfully keep and perform all of the
covenants, conditions and agreements on the part of landlord to be kept and
performed under all leases and tenancies covering the Premises, enforce or
secure the performance of all of the covenants, conditions and agreements on the
part of the tenants to be kept and performed under such leases and tenancies,
appear in and defend any action or proceeding arising out of or in any manner
connected with such leases and tenancies or the rights and obligations of
landlord or tenants thereunder, execute and deliver to Mortgagee, upon request,
any and all documents and instruments deemed necessary by Mortgagee to transfer
and assign to Mortgagee any lease and all rents and rights thereunder and under
any tenancy covering all or any portion of the Premises, furnish to Mortgagee,
upon request, a written statement containing the names of all lessees and the
terms of all leases and tenancies, including the spaces occupied and the rentals
payable thereunder, and exercise, within ten (10) calendar days of any demand
therefor by Mortgagee, any right to request from any tenant under any lease a
certificate with respect to the status thereof in a form set forth under the
applicable lease and otherwise as requested by Mortgagee.
16. Exoneration of Mortgagee. Nothing in this Mortgage or in any other documents
relating to the indebtedness secured by this Mortgage shall be construed to
obligate Mortgagee, expressly or by implication, to keep or perform any of the
covenants and agreements on the part of the landlord to be kept and performed
under leases and tenancies covering all or any portion of the Premises or to pay
any sum of money or damages to be paid by the landlord or landlord's assignee
under such leases and tenancies, all of which covenants, agreements and payments
shall be kept, performed and paid by Mortgagor.
17. Attornment. In the event of an Event of Default by Mortgagor and enforcement
by Mortgagee of the remedies provided by law or by this Mortgage, the tenant
under each lease and tenancy covering all or any portion of the Premises shall,
at the option of Mortgagee and upon delivery of a notice from Mortgagee to such
tenant, attorn to any person succeeding to the interest of Mortgagor as a result
of such enforcement and shall recognize such successor in interest as landlord
under such lease or tenancy without any change in the terms or other provisions
thereof; provided, however, that said successor-in-interest shall not be bound
by any payments made or deemed to have been made by any tenant more than thirty
(30) days in advance of the due date of any such payments or by any amendment or
modification to any lease or tenancy not permitted hereunder made without the
prior consent of Mortgagee or said successor-in-interest. Each tenant, upon
request by Mortgagee or any such successor-in-interest, shall execute and
deliver an instrument or instruments confirming such attornment and Mortgagor
shall cause each lease covering all or any portion of the Premises to contain a
covenant on the part of the tenant evidencing its agreement to such attornment.
18. Inspection of Books and Records. In the event that all or any portion of the
Premises are leased or available for lease, Mortgagor shall, during any such
period, keep and maintain complete and accurate books and records showing, in a
manner reasonably satisfactory to Mortgagee, all income and expenses of the
Premises and shall, upon request by Mortgagee, from time to time, allow
Mortgagee to examine such books and records and all supporting documentation at
the principal office of Mortgagor or at such other location as may be mutually
agreed upon.
19. Security Agreement.
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(a) Financing Statement. This Mortgage shall also constitute a
Security Agreement, as that term is used in the Uniform Commercial Code (the
"Code") of the state in which the Premises are located, with respect to any
portion of the Premises which is now or hereafter deemed to be personal
property, fixtures or property other than real estate and all replacements,
additions and substitutions thereto (the "UCC Collateral"). All of Mortgagor's
right, title and interest in and to the UCC Collateral is hereby assigned to
Mortgagee to secure the payment of the indebtedness secured by and the
performance of the obligations contained in this Mortgage. Mortgagee shall have,
in addition to the rights and remedies granted to Mortgagee under this Mortgage,
all of the rights and remedies of a secured party under the Code with respect to
the UCC Collateral and Mortgagor hereby agrees that in the event Mortgagee shall
exercise any right or remedy under the Code following a default by Mortgagor
under this Mortgage, whether to dispose of the Collateral or otherwise, ten (10)
days notice by Mortgagee to Mortgagor shall be deemed to be reasonable notice
under any provision of the Code requiring such notice. Mortgagor shall,
immediately upon request by Mortgagee, execute and deliver to Mortgagee, in a
form prescribed by Mortgagee, any financing statement, continuation statement,
certificate or other document covering all or any portion of the UCC Collateral
designated by Mortgagee that, in the opinion of Mortgagee, may be required to
perfect, continue, affirm or otherwise maintain the existence and priority of
the security interest in the UCC Collateral created under this Mortgage.
Mortgagor, if requested by Mortgagee, shall also execute and deliver to
Mortgagee a Security Agreement covering the UCC Collateral and containing such
covenants, conditions and agreements consistent with and in addition or as a
supplement to those contained in this Mortgage as may be requested by Mortgagee.
(b) To the extent that any portion of the Premises subject to
the Code constitutes a fixture under the Code, then this Mortgage is to be filed
and effective as a financing statement filed as a fixture filing and filed for
record in the real estate records pursuant to Section 9-402 of the Code.
Mortgagor is the "Debtor," and the address of Debtor set forth in the initial
paragraph of the Mortgage is the mailing address of Debtor. Mortgagee is the
"Secured Party" and the place of business of Secured Party set forth in the
initial paragraph of this Mortgage is an address of Secured Party from which
information concerning the security interest may be obtained. All or part of the
portion of the Premises subject to the Code are or are to become fixtures
related to the real estate described in the Mortgage.
20. Inspection of Premises. Mortgagor hereby grants to Mortgagee and its agents
the right to inspect the Premises at all reasonable times and shall permit
access thereto for such purpose conducted in a manner that would not materially
impair the business operations being conducted on the Premises.
21. Future Advances. If, at any time prior to the payment in full of the
indebtedness secured by this Mortgage, Mortgagee shall advance additional funds
to or for the benefit of Mortgagor, such advance together with applicable
interest thereon shall be secured by this Mortgage in accordance with all
covenants, conditions and agreements herein contained without being evidenced by
any further written instrument or notation and, to the extent permitted by law,
shall be on a parity with and not subordinate to the indebtedness evidenced by
the Notes and any and all future modifications, extensions, and renewals
thereof; provided, however, that the indebtedness secured by this Mortgage and
from time to time remaining unpaid shall not, after including the amount of all
such advances, exceed five (5) times the original principal indebtedness secured
by this Mortgage; provided further, however, the foregoing limitation is
exclusive of interest and additional advances, if any, for the protection of
collateral or to cure Mortgagor's defaults, regardless of whether same are
considered obligatory or voluntary.
22. Indemnification and Reimbursement of Expenses. Mortgagor shall hold harmless
and indemnify Mortgagee from and against any loss, cost, damage, liability or
expense, including reasonable attorneys' fees, arising out of any suit or
proceeding or threat thereof in which Mortgagee is made a party or becomes
involved (other than those arising out of or as a result of the negligent or
willful acts of Mortgagee): (a) because of any damage or destruction to persons
or property on or about the Premises, (b) because of the violation or
enforcement of any law, ordinance, private right or restriction applicable to
the Premises or the operation thereof or (c) to protect the lien or priority of
this Mortgage and any loss, cost, damage or expense so incurred or incurred by
Mortgagee in connection with protecting or enforcing any of Mortgagee's rights
under this Mortgage or
recovering any indebtedness secured by this Mortgage shall be additional
indebtedness secured by this Mortgage and shall be immediately due and payable
by Mortgagor to Mortgagee without notice and with interest thereon at the rate
applicable under the Notes after an Event of Default thereunder.
23. Remedies on Default.
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(a) Events of Default. It shall be an "Event of Default" under this Mortgage
when and if Mortgagee shall discover any material misrepresentation or breach or
inaccuracy in any representation or warranty contained in this Mortgage or in
any of the Loan Documents, or an "Event of Default" shall occur under the Credit
Agreement.
(b) Remedies. Without limiting other rights granted to Mortgagee under this
Mortgage, upon the occurrence of an Event of Default under this Mortgage,
Mortgagee may, at its option, declare the entire indebtedness secured by this
Mortgage to be immediately due and payable without notice, demand or presentment
(each of which is hereby expressly waived by Mortgagor) whereupon the same shall
become immediately due and payable, institute proceedings for the complete
foreclosure of this Mortgage, institute proceedings to collect any delinquent
installment or installments of the indebtedness secured by this Mortgage without
accelerating the due date of the entire indebtedness by proceeding with
foreclosure of this Mortgage with respect to any delinquent installment or
installments of such indebtedness only and any sale of the Premises under such a
foreclosure proceeding shall be subject to and shall not affect the unmatured
part of the indebtedness and this Mortgage shall be and continue as a lien on
the Premises securing the unmatured indebtedness, institute proceedings in
equity or at law for the specific performance of any covenant, agreement or
condition in this Mortgage or in aid of the execution of any power granted in
this Mortgage or take such other action as may be permitted under the laws of
the state in which the Premises are located.
(C) Expense of Litigation. In any suit to foreclose the lien of this Mortgage
there shall be allowed and included, as additional indebtedness in the judgment
or decree of foreclosure, all expenditures and expenses (which may be estimated
as to items to be expended after entry of the judgment or decree) which may be
paid or incurred by or on behalf of Mortgagee for court costs and attorneys'
fees and for appraisers' fees, fees for documentary and expert evidence,
stenographer's fees, publication costs, survey costs and costs of procuring all
abstracts of title, title examinations, title insurance policies and other
similar data and assurances with respect to title as Mortgagee may deem
necessary either to prosecute such suit or to evidence to bidders at any sale
which may be had pursuant to such judgment or decree of foreclosure the true
condition of the title to or value of the Premises, all of which fees and
expenses shall be reasonable in amount.
(d) Right of Possession. Upon the occurrence of an Event of Default and to the
extent permitted by law, Mortgagee, at its option, shall have the right,
personally or by its agents or attorneys, to enter upon and to take and maintain
possession of all or any portion of the Premises and to take and maintain
possession of all documents, books, records, papers and accounts of Mortgagor or
the then manager of the Premises relating thereto and may exclude Mortgagor, its
agents or servants, wholly therefrom and may, personally or by its agents or
attorneys as agent of Mortgagor or in its own name as Mortgagee and under the
powers herein granted possess, operate, manage and control the Premises and
conduct any business thereon with full power to collect all rents, issues and
profits from the Premises, take such action, legal or equitable, as may, in its
discretion, be necessary or desirable to protect or enforce the payment of the
rents, issues and profits from the Premises, including instituting actions for
recovery of rent, actions in forcible detainer and actions in distress for rent,
cancel or terminate any tenancy, lease or sublease for any cause or reason which
would entitle Mortgagor to cancel such tenancy, lease or sublease, elect to
disaffirm any tenancy, lease or sublease made subsequent to this Mortgage or
subordinated to the lien of this Mortgage, extend or modify any then existing
lease or tenancy and make new leases, which extensions, modifications and new
leases may provide for terms or options for terms to expire beyond the maturity
date of the indebtedness secured by this Mortgage, it being understood and
agreed that any such leases and the options and other provisions contained
therein shall be binding upon Mortgagor, upon all persons whose interests in the
Premises are subject to the lien of this Mortgage and upon any purchaser or
purchasers at any foreclosure sale notwithstanding any redemption from sale,
discharge of the indebtedness secured by this Mortgage, satisfaction of any
foreclosure decree or issuance of any certificate of sale or deed to any
purchaser or purchasers at any foreclosure sale, make all repairs, decorations,
renewals, replacements, alterations, additions and improvements to the Premises
as Mortgagee may deem necessary or desirable, insure and reinsure the Premises
and all risks incident to the possession, operation, management and control of
the Premises by Mortgagee and take such other action for the possession,
operation, management and control of the Premises as Mortgagee may deem
necessary or appropriate.
(e) Application of Rental Proceeds. Any rents, issues and profits from the
Premises received by Mortgagee, after taking possession of the Premises or
pursuant to any assignment thereof to Mortgagee under the provisions of this
Mortgage or any separate Assignment of Rents and Leases, shall be distributed
and applied to or on account of the following, in such order of priority as
Mortgagee (or, in the case of a receivership, as the court) may determine: the
payment of any expenses incurred in the possession, operation, management and
control of the Premises, including reasonable compensation to Mortgagee or any
receiver that may be appointed and the fees of any managing agent (if management
of the Premises is delegated to such agent) and including lease commissions and
other expenses of procuring tenants and entering into leases for the Premises,
the payment of taxes, special assessments, water and sewer charges and other
charges on the Premises now due or which may become due or which may be or
become a lien prior to the lien of this Mortgage, the payment of any expenses
incurred for any repairs, decorations, renewals, replacements, alterations,
additions and improvements to the Premises or the operation thereof, the payment
of any indebtedness secured by this Mortgage, the payment of any amount set
forth in any judgment or decree of foreclosure and the payment of any deficiency
which may result from any foreclosure sale or with respect to any remaining
funds, to the Mortgagor, its successors or assigns, as their rights may appear.
(f) Appointment of Receiver. Upon or at any time after the filing of any
complaint to foreclose this Mortgage, and after an Event of Default has occurred
and is continuing, the court in which such foreclosure is filed may, upon
application by Mortgagee, appoint a receiver of the Premises (which may be
Mortgagee) and Mortgagor hereby consents to such appointment. Such appointment
may be made either before or after sale, without notice, without regard to the
solvency or insolvency, at the time of the application for such receiver, of any
party liable for the payment of the indebtedness secured by this Mortgage,
without regard to the then value of the Premises or whether the Premises are
then occupied as a homestead or not and without the posting of any bond being
required of the applicant. Such receiver shall have the power to take possession
of and to operate, manage and control the Premises, to collect and receive all
rents, issues and profits from the Premises during the pendency of such
foreclosure suit and, in the case of a sale and a deficiency, during the full
statutory period of redemption, if any, as well as during any further times when
Mortgagor, its successors or assigns, except for the intervention of such
receiver, would be entitled to collect such rents, issues and profits and to
exercise all other powers which may be necessary or desirable for the
protection, possession, operation, management and control of the Premises during
the whole of the aforesaid period. To the extent permitted by law, such receiver
may be authorized by the court to cancel or terminate any tenancy, lease or
sublease for any cause or reason which would entitle Mortgagor to cancel such
tenancy, lease or sublease, elect to disaffirm any tenancy, lease or sublease
made subsequent to this Mortgage or subordinated to the lien of this Mortgage
and extend or modify any then existing leases and tenancies and to make new
leases, which extensions, modifications and new leases may provide for terms or
options for terms to expire beyond the maturity date of the indebtedness secured
by this Mortgage, it being understood and agreed that any such leases and the
options and other provisions contained therein shall be binding upon Mortgagor,
upon all persons whose interests in the Premises are subject to the lien of this
Mortgage and upon any purchaser or purchasers at any foreclosure sale
notwithstanding any redemption from sale, discharge of the indebtedness secured
by this Mortgage, satisfaction of any foreclosure decree or issuance of any
certificate of sale or deed to any purchaser or purchasers at any foreclosure
sale.
(g) Sale of Premises. To the extent permitted by law all or any portion of the
Premises or any interest or estate therein to be sold pursuant to any judgment
or decree of foreclosure obtained pursuant to this Mortgage shall be sold as a
single parcel or as multiple parcels in such manner or order as Mortgagee, in
its sole discretion, may elect. At any foreclosure sale of all or any portion of
the Premises, Mortgagee may bid for and acquire, as purchaser, the Premises or
any portion thereof being sold and, in lieu of paying cash therefor, may credit
against the indebtedness secured by this Mortgage and the amount set forth in
the judgment or deed of foreclosure, the amount bid by Mortgagee at such
foreclosure sale.
(h) Application of Foreclosure Proceeds. The proceeds from any foreclosure sale
of all or any portion of the Premises shall be distributed and applied in the
following order of priority: on account of all reasonable costs and expenses
incident to any such foreclosure proceedings, on account of all items (other
than principal and interest remaining unpaid under the Notes) which, under the
terms of this Mortgage, constitute indebtedness secured by this Mortgage,
together with interest thereon (unless otherwise included in the indebtedness)
at the rate applicable under the Notes after an Event of Default thereunder, on
account of all principal and interest remaining unpaid under the Notes and the
excess, if any, to Mortgagor, its successors or assigns, as their rights may
appear.
(i) Application of Deposits. Mortgagee shall have the right, but not the
obligation, to apply any deposit held by Mortgagee or by any depository pursuant
to any provisions of this Mortgage to the payment of any indebtedness secured by
this Mortgage in such order and manner as Mortgagee may elect.
(j) Waiver of Statutory Rights. Mortgagor agrees that it shall not apply for or
avail itself of and hereby waives the benefit of, for itself and all who may
claim through or under it, any appraisement, valuation, stay, moratorium,
extension or exemption laws, whether existing on the date of this Mortgage or
hereafter enacted, in any enforcement or foreclosure of this Mortgage.
Mortgagor, for itself and all who may claim through or under it, waives any and
all right to have the Premises or any portion thereof marshaled upon any
foreclosure of this Mortgage and Mortgagor agrees that any court having
jurisdiction to foreclose this Mortgage may order the Premises sold as an
entirety. Mortgagor does hereby waive any and all rights of reinstatement and
rights of redemption from sale under any judgment or decree of foreclosure of
this Mortgage on behalf of itself and each and every person, except judgment
creditors of the Mortgagor, acquiring any interest in or title to the Premises
subsequent to the date of this Mortgage.
(k) Waiver of Defenses. No action for the enforcement or foreclosure of this
Mortgage shall be subject to any defense which would not be good and available
to the party interposing the same in an action at law upon the Notes.
(l) Partial Payments. Acceptance by Mortgagee of any payment which is less than
payment in full of all amounts due and payable at the time such payment is made
shall not constitute a waiver of Mortgagee's right to declare the entire
indebtedness secured by this Mortgage to be immediately due and payable without
notice, demand or presentment or to exercise any other right or remedy of
Mortgagee under this Mortgage at that time or at any subsequent time nor shall
such acceptance nullify any prior exercise by Mortgagee of any right or remedy
under this Mortgage without the express written consent of Mortgagee.
(m) Rescission of Acceleration. Mortgagee shall have the right to rescind any
acceleration of the indebtedness secured by this Mortgage and the right to
discharge or dismiss any proceedings brought to enforce any right or remedy of
Mortgagee under this Mortgage and, in the event Mortgagee elects to exercise
either of such rights, the obligations of Mortgagor and the rights and remedies
of Mortgagee shall continue as if such acceleration had not been made or such
proceedings had not been commenced.
24. Deficiency Decree. If at any foreclosure proceeding the Premises shall be
sold for a sum less than the total amount of indebtedness for which judgment is
therein given, the judgment creditor shall be entitled to the entry of a
deficiency decree against Mortgagor and against the property of Mortgagor for
the amount of such deficiency, and Mortgagor does hereby irrevocably consent to
the appointment of a receiver for the Premises and the other property (real and
personal) of Mortgagor and of the rents, issues and profits thereof after such
sale and until such deficiency decree is satisfied in full.
25. Remedies Cumulative and Concurrent. The rights and remedies of Mortgagee as
provided in this Mortgage shall not be exclusive of, but shall be in addition
to, any right or remedy now or hereafter existing at law or in equity and all
such rights and remedies may be exercised together, independently or in any
combination and when and as often as Mortgagee shall elect.
26. Subrogation. In the event that any portion of the proceeds of the
indebtedness secured by this Mortgage are used, directly or indirectly, to pay
off, discharge or satisfy, in whole or in part, any prior lien or encumbrance on
the Premises, or any part thereof, then Mortgagee shall be subrogated to the
rights of the creditor under such other lien or encumbrance and shall have the
benefit of the priority of such other lien or encumbrance.
27. Environmental Matters. Mortgagor covenants, represents and warrants that to
Mortgagor's best knowledge and upon due inquiry based solely upon the Phase I
Environmental Assessment for 3030 Barker Drive, Columbus, Bartholomew County,
Indiana 47201, dated September 29, 1999, prepared by Property Solutions Inc. and
that certain Hybrid Environmental Assessment for 3030 Barker Drive, Columbus,
Bartholomew County, Indiana 47201, dated August 18, 2000, prepared by
McLern/Heart Engineers Midwest, Inc. (collectively, the "Environmental
Studies"), and except as otherwise set forth in those Environmental Studies: (a)
no substances, including without limitation, asbestos or any substance
containing more than 0.1 percent asbestos, the group of compounds known as
polychlorinated biphenyls, flammable explosives, radioactive materials,
chemicals known to cause cancer or reproductive toxicity, pollutants, effluent,
contaminants, emissions or related materials and any items included in the
definition of hazardous or toxic waste, materials or substances (collectively
referred to as, the "Hazardous Materials") (any mixture of a Hazardous Material,
regardless of concentration, with other materials shall be considered a
Hazardous Material) under any law relating to environmental conditions and
industrial hygiene, including without limitation, the Resource Conservation and
Recovery Act of 1976 ("RCRA"), 42 U.S.C. ss.6901 et seq., the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42
U.S.C. ss.ss.9601 et seq., as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("SARA"), the Hazardous Materials and Transportation
Act, 49 U.S.C. ss.1801, et seq., the Clean Air Act, 42 U.S.C. ss.ss.7401 et
seq., the Toxic Substances Control Act, 15 U.S.C. ss.ss.2601-2629, the Safe
Drinking Water Act, 42 U.S.C. ss.ss.300f et seq., and all similar federal, state
and local environmental statutes, ordinances and the regulations, orders,
decrees now or hereafter promulgated thereunder (collectively, the "Hazardous
Material Laws"), have been or shall be installed, used, generated, manufactured,
treated, handled, refined, produced, processed, stored or disposed of, or
otherwise present in, on or under the Premises except that this provision does
not prohibit (1) the use of unrecycled fuel oil as a boiler fuel; (2) the normal
use of consumer products; or (3) the normal use of materials such as cleaning
products, copier toner, and similar materials routinely used in offices;
provided that such use is not violative of any Hazardous Material Laws; (b) no
activity has been or shall be undertaken on the Premises which would cause (i)
the Premises to become a hazardous waste treatment, storage or disposal facility
within the meaning of, or otherwise bring the Premises within the ambit of RCRA
or any Hazardous Material Law, (ii) a release or threatened release of Hazardous
Material from the Premises within the meaning of, or otherwise bring the
Premises within the ambit of CERCLA or SARA or any Hazardous Material Law, or
(iii) the discharge of Hazardous Material into any watercourse, body or surface
or atmosphere of any Hazardous Material which would require a permit under any
Hazardous Material Law; (c) no activity has been or shall be undertaken with
respect to the Premises which would cause a violation or support a claim under
RCRA, CERCLA, SARA or any Hazardous Material Law; (d) no underground storage
tanks or underground Hazardous Material deposits are or were located on the
Premises and subsequently removed or filled; (e) no investigation,
administrative order, litigation or settlement with respect to any Hazardous
Materials is threatened or in existence with respect to the Premises; and (f) no
notice has been served on Mortgagor from any entity, governmental body, or
individual claiming any violation of any Hazardous Material Law, or requiring
compliance with any Hazardous Material Law, or demanding payment or contribution
for environmental damage or injury to natural resources.
28. Partial Release. Mortgagee may, at any time and from time to time, with or
without consideration, release any portion of the Premises from the lien of this
Mortgage, release any person liable for any indebtedness secured by this
Mortgage or extend the time for payment of all or any portion of the
indebtedness secured by this Mortgage without in any way affecting the lien of
this Mortgage or the priority thereof (except as specifically set forth in such
release) and without in any way affecting the obligations of any party liable
for the indebtedness secured by this Mortgage (except as specifically set forth
in such release or extension).
29. Excess Interest. If it is determined that Mortgagor shall have paid or there
shall have accrued interest on the indebtedness secured by this Mortgage in an
amount in excess of that permitted by law, such excess shall, to the extent
required by law and otherwise at the option of Mortgagee, either be applied to
reduce the unpaid indebtedness secured by this Mortgage or be refunded to
Mortgagor.
30. Waiver. Any delay in the exercise of or failure to exercise any right or
remedy accruing on any default under this Mortgage shall not impair any such
right or remedy and shall not be construed to be a waiver of any such default or
acquiescence therein nor shall it affect any subsequent default of the same or
of a different nature.
31. Notices. All notices, consents, requests, demands and other communications
to be given in connection with this Mortgage shall be in writing and shall be
deemed duly given to any party or parties upon delivery to the address of the
party or parties specified below if delivered personally or sent by certified or
requested mail, return receipt requested, as follows:
1.
If to Mortgagor:
Onkyo America, Inc.
c/o Global Technovations, Inc.
7108 Fairway Drive, Suite 200
Palm Beach Gardens, Florida 33148
Attn: William C. Willis, Jr.
Facsimile: 561-691-5220
With copies to:
Michael Harris, P.A.
1645 Palm Beach Lakes Blvd.
Suite 550
West Palm Beach, Florida 33401
Attn: Michael D. Harris, Esq.
Facsimile: 561-478-1817
If to Mortgagee:
GMAC Business Credit, LLC
300 Galleria Officentre, Suite 110
Southfield, MI 48034
Attn: Michael Molenda
Facsimile: 321-775-6006
With copies to:
Vedder, Price, Kaufman & Kammholz
222 N. LaSalle Street
Chicago, Illinois 60601-1003
Attn: Michael A. Nemeroff, Esq.
Facsimile: 312-609-5005
or to such other address as any party may hereafter designate by written notice
in the aforesaid manner. Nothing in this Section shall be construed to require
notice from Mortgagee to Mortgagor prior to taking any action permitted under
this Mortgage unless specifically required by the terms of this Mortgage.
32. Successors and Assigns. This Mortgage and all provisions hereof
shall extend to and be binding upon the mortgagor, its successors and
assigns, and all persons claiming under or through Mortgagor and shall
inure to the benefit of Mortgagee and its successors and assigns.
33. Further Assurances. Mortgagor shall, upon the request of Mortgagee,
execute, acknowledge and deliver any additional instruments and
further assurances and do or cause to be done any further acts and
things as may be reasonably necessary to carry out the intent of this
Mortgage.
34. Definitions. "Mortgagor" when used herein shall include the
undersigned and all persons liable for the payment of the
indebtedness, or any part thereof, secured by this Mortgage whether or
not such persons shall have executed this Mortgage. Whenever the
context of any sentence of this Mortgage shall so require, the
singular shall include the plural, the plural the singular and the use
of any gender shall include all genders. The word "person" as used
herein shall mean any natural person and any partnership, joint
venture, corporation, association or other legal entity.
35. Time is of the Essence. It is specifically agreed that time is of the
essence of this Mortgage.
36. Modifications. This Mortgage may not be amended or modified except by
an instrument in writing signed by the party against whom enforcement
of the amendment or modification is asserted.
37. Covenants to Run with the Land. All the covenants and agreements
contained in this Mortgage shall run with the land.
38. Captions. The captions and headings of the sections of this Mortgage
are for convenience only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions of this
Mortgage.
39. Severability. If any provision of this Mortgage or the application
thereof to any circumstances shall be held invalid or unenforceable,
the remainder of this Mortgage and the application thereof to
other circumstances shall not be affected thereby and shall be enforced
to the greatest extent permitted by law.
40. Applicable Law. THIS MORTGAGE AND THE OTHER LOAN DOCUMENTS SHALL BE
DEEMED TO HAVE BEEN, DELIVERED AND ACCEPTED IN, AND THIS MORTGAGE AND
THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS AND DECISIONS OF, THE STATE OF ILLINOIS
(WITHOUT REGARD FOR ITS CONFLICTS OF LAW PRINCIPLES), AND BY EXECUTION
HEREOF MORTGAGOR AND BY ACCEPTANCE HEREOF, MORTGAGEE, EACH AGREE THAT
SUCH LAWS AND DECISIONS OF THE STATE OF ILLINOIS SHALL GOVERN THIS
MORTGAGE AND THE OTHER LOAN DOCUMENTS, NOTWITHSTANDING THE FACT THAT
THERE MAY BE OTHER JURISDICTIONS WHICH MAY BEAR A REASONABLE
RELATIONSHIP TO THE TRANSACTIONS CONTEMPLATED HEREBY; PROVIDED,
HOWEVER, THAT WITH RESPECT TO THE PROCEDURAL AND SUBSTANTIVE MATTERS
RELATING ONLY TO THE CREATION, VALIDITY, PERFECTION AND ENFORCEMENT BY
MORTGAGEE OF ITS RIGHTS AND REMEDIES AGAINST ANY REAL OR PERSONAL
PROPERTY COLLATERAL LOCATED IN ANY STATE OTHER THAN ILLINOIS, SUCH
MATTERS SHALL BE GOVERNED BY THE LAWS OF THE STATE IN WHICH SUCH
PROPERTY IS LOCATED.
41. Jurisdiction and Venue. TO INDUCE MORTGAGEE TO ACCEPT THIS MORTGAGE
AND THE NOTES, THE MORTGAGOR IRREVOCABLY AGREES THAT, ALL ACTIONS OR
PROCEEDINGS IN ANY WAY, MANNER, OR RESPECT ARISING OUT OF OR FROM OR
RELATED TO THIS MORTGAGE, OR THE NOTES SHALL BE LITIGATED ONLY IN
STATE COURTS HAVING SITUS WITHIN THE CITY OF CHICAGO OR IN FEDERAL
COURTS HAVING SITUS WITHIN THE NORTHERN DISTRICT OF ILLINOIS, EXCEPT
TO THE EXTENT NECESSARY TO ENFORCE THE PROVISIONS OF THIS MORTGAGE.
THE MORTGAGOR AND MORTGAGEE HEREBY CONSENT AND SUBMIT TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN SAID CITY
AND DISTRICT. THE MORTGAGOR AND MORTGAGEE HEREBY IRREVOCABLY APPOINT
AND DESIGNATE ANY AUTHORIZED OFFICER OR ANY OTHER PERSON HAVING AND
MAINTAINING A PLACE OF BUSINESS IN SUCH STATE, WHOM AN AUTHORIZED
OFFICER MAY FROM TIME TO TIME HEREAFTER DESIGNATE (HAVING GIVEN FIVE
(5) DAYS' WRITTEN NOTICE THEREOF TO THE OTHER PARTY), AS THE PARTY'S
TRUE AND LAWFUL ATTORNEY AND DULY AUTHORIZED AGENT FOR ACCEPTANCE OF
SERVICE OF LEGAL PROCESS. THE MORTGAGOR AND MORTGAGEE AGREE THAT
SERVICE OF SUCH PROCESS UPON SUCH PERSON SHALL CONSTITUTE PERSONAL
SERVICE OF SUCH PROCESS UPON THE OTHER PARTY. THE MORTGAGOR AND
MORTGAGEE HEREBY WAIVE ANY RIGHT TO TRANSFER OR CHANGE THE VENUE OF
ANY LITIGATION BROUGHT AGAINST THE OTHER PARTY IN ACCORDANCE WITH THIS
PARAGRAPH. THE MORTGAGOR AND MORTGAGEE HEREBY IRREVOCABLY WAIVE THE
RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION IN WHICH THE OTHER
PARTY IS A PARTY.
42. Release. Upon payment in full of all indebtedness secured by this
Mortgage and the satisfaction of all obligations of Mortgagor
hereunder, Mortgagee shall release the lien of this Mortgage and shall
return or cause the return of any deposit or deposits held by
Mortgagee or any depository pursuant to any provisions of this
Mortgage to Mortgagor.
43. After Acquired Property. Any and all property hereafter acquired which
is of the kind or nature herein provided, or intended to be and become
subject to the lien hereof, shall ipso facto, and without any further
conveyance, assignment or act on the part of Mortgagor, become and be
subject to the lien of this Mortgage as fully and completely as though
specifically described herein; but nevertheless Mortgagor shall from
time to time, if requested by Mortgagee, execute and deliver any and
all such further assurances, conveyances and assignments as Mortgagee
may reasonably require for the purpose of expressly and specifically
subjecting to the lien of this Mortgage all such property.
44. Recordation and Payment of Taxes and Expenses Incident Thereto.
Mortgagor will cause this Mortgage, all mortgages supplemental hereto
and any financing statement or other notice of a security interest
required by Mortgagee at all times to be kept, recorded and filed at
its own expense in such manner and in such places as may be required
by law for the recording and filing or for the rerecording and
refiling of a mortgage or other lien or charge upon the Premises or
any part thereof, in order fully to preserve and protect the rights of
Mortgagee hereunder and, without limiting the foregoing, Mortgagor
will pay or reimburse Mortgagee for the payment of any and all taxes,
fees or other charges incurred in connection with any such recordation
or re-recordation, including any documentary stamp tax, intangibles
tax or tax imposed upon the privilege of having this instrument or any
instrument issued pursuant hereto recorded.
[Signature Page Follows]
<PAGE>
[Mortgage Signature Page]
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be signed the
day and year first above written.
Mortgagor:
ONKYO AMERICA, INC., an Indiana corporation
By:
Douglas E. Pillow
Executive Vice President - Finance
<PAGE>
[Mortgage Notary Block]
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
I, Julie A. Stephens, a Notary Public in and for said County, in the State
aforesaid, do hereby certify that Douglas E. Pillow, the Executive Vice
President - Finance of Onkyo America, Inc., personally known to me to be the
same person whose name is subscribed to the foregoing instrument as such
appeared before me this day in person and acknowledged that he/she signed and
delivered the said instrument as his/her own free and voluntary act and as the
free and voluntary act of said corporation.
In witness whereof, I hereunto set my hand and official seal this ___
st day of August, 2000.
-----------------------------------
Notary Public
[SEAL] Print Name:_________________________
Expiration:________________________
THIS INSTRUMENT WAS PREPARED
BY AND SHOULD BE RETURNED TO:
Michael A. Nemeroff (AME)
Vedder, Price, Kaufman & Kammholz
222 North LaSalle Street, Suite 2600
Chicago, Illinois 60601-1003
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
PARCEL I
Lot Number One (1) in Woodside Business Center, Section Two, as recorded in Plat
Book "O", page 71, in the Office of the Recorder of Bartholomew County, Indiana.
PARCEL II
A part of the Southwest Quarter of the Southeast Quarter of Section 10, Township
8 North, Range 5 East, in Bartholomew County, Indiana, and more particularly
described as follows:
Beginning at a pipe near a stone found marking the Northeast corner of the
aforesaid Quarter Quarter; thence North 88 degrees 50 minutes 36 seconds West
(assumed bearing based on the Plat of Woodside Business Center - Section Two as
recorded in Plat Book "O", Page 71), along the North Line of said Quarter
Quarter 330.80 feet to a stone found; thence South 00 degrees 01 minute 44
seconds East along the East line of Lot 1 in said Woodside Business Center -
Section Two, a distance of 760.43 feet to a wooden fence corner post found;
thence South 88 degrees 27 minutes 57 seconds East along a North line of Tract
8A in the aforesaid plat a distance of 325.59 feet to a pinch pipe found; thence
North 00 degrees 22 minutes 00 seconds East along the East Line of said Quarter
Quarter 762.49 feet to the point of beginning, containing 5.74 acres.
PARCEL III
TOGETHER with a 12 foot access easement running from the North line of said real
estate through the Northwest Quarter of the Southeast Quarter of Section 10,
Township 8 North, Range 5 East, in Bartholomew County, Indiana, to Deaver Road.
Tax Parcel Nos. 023-006600-0 and 023-020800-0
--------------
Common Address: 3030 Barker Drive, Columbus, IN
<PAGE>
EXHIBIT B
PERMITTED EXCEPTIONS
1. All taxes not yet due and payable.
2. Ditch Assessments for the Walesboro Drain not yet due and payable.
3. Covenants, conditions, restrictions, and easements all as set out in
the Plat for Woodside Business Center, Section Two, as recorded in Plat
Book "O", page 71, in the Office of the Recorded of Bartholomew County,
Indiana, and in Declaration of Covenants recorded in Miscellaneous
Record 55, pages 725-780.
4. Set-back and use restrictions, possible assessments for maintenance
and reconstruction, and all rights of others entitled to the continued
uninterrupted flow of the water through Walesboro Drain, a legal
drain. (Indiana Drain Code, I.C. (1981) 36-9-27-33 et seq.)
5. Rights of the public for highway purposes in and to that portion of
insured real estate lying within the bounds of any public road.
