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Exhibit 10.2
OPEN-END MORTGAGE
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Maximum Principal Amount $8,500,000.00
THIS OPEN-END MORTGAGE ("Mortgage") made as of the 24th day of
September, 1997 by DURAMED PHARMACEUTICALS, INC., a Delaware corporation, with a
mailing address of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, (hereinafter
referred to as "Mortgagor," whether one or more) to THE PROVIDENT BANK, a
banking corporation with a mailing address of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (hereinafter, together with its successors and assigns
called "Mortgagee").
WHEREAS, ▇▇▇▇▇▇▇▇▇ has executed and delivered to Mortgagee a certain
promissory note in the principal amount of Eight Million Five Hundred Thousand
and 00/100 Dollars ($8,500,000.00) dated of even date herewith (this promissory
note together with any renewals, extensions or modifications thereof which
remain outstanding while the Mortgage is in effect shall hereinafter be referred
to as the "Note"), which Note evidences a loan (the "Loan") from Mortgagee to
Mortgagor wherein ▇▇▇▇▇▇▇▇▇ promises to pay to Mortgagee so much thereof as may
now or hereafter be disbursed to or for the account of ▇▇▇▇▇▇▇▇▇, together with
interest thereon as set forth in the Notes, with the final installment being due
on October 1, 2007.
WHEREAS, the Loan is made pursuant to the terms and in accordance with
or reliance upon certain other agreements and documents, which may include,
without limitation, an Assignment of Leases, Rents and Proceeds from Mortgagor
to Mortgagee dated of even date herewith, an Environmental Indemnification
Agreement and Unconditional Guaranty from ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Company ("Guarantor")
to Mortgagee dated of even date herewith, certificates, and affidavits
(hereinafter collectively referred to herein as "Loan Documents").
ARTICLE 1
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THE GRANT
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NOW THEREFORE, in consideration of the making of the Loan, ▇▇▇▇▇▇▇▇▇
does hereby agree that the Mortgage shall secure the following: (a) the prompt
payment of the indebtedness evidenced by the Note, with interest thereon, and
any late or other charges imposed in accordance with the terms thereof; and (b)
the payment, performance and observance by Mortgagor of all of the covenants and
conditions contained in the Note, this Mortgage and the Loan Documents; (items
(a) and (b) shall hereinafter collectively be referred to as the "Indebtedness
Hereby Secured"), and in order to charge the properties, interests and rights
hereinafter described with such payment, performance and observance, and for
other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, ▇▇▇▇▇▇▇▇▇ does hereby mortgage, warrant, grant, bargain, sell,
assign, encumber, convey and grant a security interest to Mortgagee forever in
all of the estate, title, and interest of Mortgagor in the fee simple, leasehold
and easement estates in that certain real property situated in the County of
▇▇▇▇▇▇▇▇ and State of Ohio and more particularly described on Exhibit "A"
attached hereto and by reference made a part hereof ("Real Property");
TOGETHER WITH all and singular the tenements, hereditaments, and
appurtenances thereto belonging, all present and future buildings, structures,
annexations, access rights, rights-of-way or use,
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servitudes, licenses, and improvements thereon, all of the rights, privileges,
licenses, easements and appurtenances belonging to such Real Property, together
with all of the estates and rights in and to lands lying in streets, alleys and
roads adjoining the said Real Property (collectively the "Improvements") and all
Mortgagor's right, title, interest, estate, claim and demand, either at law or
in equity, in and to all fixtures, including, without limiting the generality of
the foregoing, all lighting, heating, cooling, ventilating, air conditioning,
incinerating, sprinkling, gas, plumbing, waste removal and refrigeration
systems, engines, furnaces, boilers, pumps, tanks, heaters, generators, motors,
fire prevention apparatus and all pipes, wires, fixtures, and apparatus forming
a part of or used in connection therewith; elevators and motors, refrigeration
plants or units, storm windows and doors, window and door screens, awnings and
window and door shades, all drapes and curtains and related hardware and
mounting devices, wall-to-wall carpeting; fixtures situated on the Real Property
and used or usable in operation thereof as well as all additions, improvements
and replacements thereto, and proceeds thereof; all water, sanitary and storm
sewer systems including all water mains, service laterals and mineral rights,
hydrants, valves and appurtenances, all sanitary sewer lines, including mains,
laterals, manholes and appurtenances, all paving for streets, roads, walkways or
entrance ways, all minerals, soil, flowers, shrubs, crops, trees, timber and
other emblements now or hereafter on the Real Property or under or above the
same or any part or parcel thereof, all proceeds, or sums payable in lieu of or
as compensation for the loss or damage to Improvements or to the Real Property
upon which the said property covered hereby is or may be located including
without limitation the buildings or improvements now or hereafter located
thereon, and all rights in and to all pertinent present and future fire, hazard,
business interruption, rental interruption and other insurance policies
maintained by Mortgagor on the Improvements and Real Property, all payment and
performance bonds received in connection with any construction or other matter
and all rights thereunder, all plans, specifications, drawings, studies,
surveys, appraisals and other similar work product, all contracts for design,
architectural, engineering or construction services and all rights and claims
thereunder; all other contract rights and agreements for the protection of
property or services to or in connection with, or otherwise benefiting the Real
Property, including without limitation all management agreements and cable
television agreements; all permits, licenses, variances, approvals and/or
consents issued by any governmental entity, utility or other entity; all awards
made by any public body or created by any competent jurisdiction for the taking
or the degradation of value in any eminent domain proceedings, or purchase in
lieu thereof; all of Mortgagor's interest and rights as lessor or lessee in and
to all leases now or hereafter affecting the said Real Property or part thereof;
all contracts for the sale of all or any portion of said Real Property; the Real
Property, Improvements and fixtures are hereinafter referred to as the
"Premises".
Mortgagee is hereby subrogated to the rights of all mortgagees, lien
holders and owners paid off by the proceeds of the Loan secured hereby.
TO HAVE AND TO HOLD, the Premises unto the Mortgagee, its successors
and assigns forever for the use and purposes hereinafter set forth.
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ARTICLE 2
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REPRESENTATIONS AND WARRANTIES
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2.1 TITLE. ▇▇▇▇▇▇▇▇▇ does hereby represent and warrant to Mortgagee
that it is lawfully seized of the Premises in fee simple and has full power to
convey the same and to execute this Mortgage; that the Premises are free, clear
and unencumbered of all easements, restrictions, and liens whatsoever, except
those easements, restrictions and liens set forth in the title evidence issued
to Mortgagee in connection herewith, if any ("Permitted Encumbrances"); that
▇▇▇▇▇▇▇▇▇ does warrant and will defend the title to the Premises against the
claims and demands of all persons whomsoever except for the Permitted
Encumbrances; that Mortgagor will keep and observe all of the terms of this
Mortgage on Mortgagor's part to be performed; and that ▇▇▇▇▇▇▇▇▇ will make any
further assurances of title that Mortgagee may reasonably require.
2.2 MECHANICS LIEN MATTERS. ▇▇▇▇▇▇▇▇▇ represents and warrants that no
Notice of Commencement (as identified in Ohio Revised Code Section 1311.04) as
to the Premises has been filed or will be filed prior to the filing for record
of this Mortgage and that Mortgagor shall promptly provide Mortgagee with a copy
of all Notices of Furnishing (as identified in Ohio Revised Code Section
1311.05) received by ▇▇▇▇▇▇▇▇▇.
ARTICLE 3
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COVENANTS
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▇▇▇▇▇▇▇▇▇ further covenants and agrees with Mortgagee as follows:
3.1 PAYMENTS. To pay to Mortgagee, when due, the principal balance of
the Note with interest thereon and all other late charges and/or penalties, all
in accordance with the terms of the Note and to pay all other Indebtedness
Hereby Secured at the times and in the manner herein and therein provided.
3.2 TAXES AND OTHER IMPOSITIONS. To pay, when due according to law, all
taxes, assessments and other charges which are now due or may hereafter be
imposed or assessed upon the Premises, or any part thereof, or that may be
imposed or assessed against the holder of this Mortgage (except when contested
in good faith and when appropriate reserves are established) and the Note by
reason of ownership thereof, by any authority, be it federal, state, county or
city, including but not limited to charges imposed upon the Premises under any
applicable declaration of condominium. Upon the failure of Mortgagor promptly to
pay such taxes, assessments and other charges, Mortgagee shall have the option
to pay and discharge the same after written notice to Mortgagor, and any sum so
expended by Mortgagee shall at once become indebtedness owing from Mortgagor to
Mortgagee, shall be immediately due and payable by Mortgagor with interest
thereon to the extent legally enforceable at the rate of interest provided in
the Note in the event of default and shall together be added to the Indebtedness
Hereby Secured. Upon the request of Mortgagee, ▇▇▇▇▇▇▇▇▇ will promptly provide
Mortgagee with evidence of payment of the above taxes, assessments and other
charges imposed or assessed upon the Premises.
3.3 INSURANCE. For the term of this Mortgage, to obtain and keep in
full force and effect at the sole cost and expense of Mortgagor or cause to be
obtained and kept policies of insurance
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to: (a) maintain comprehensive general public liability insurance covering the
legal liability of Mortgagor against claims for bodily injury, and/or property
damage arising out of the use, maintenance and/or operation of the Premises and
all areas appurtenant thereto and/or the conduct of ▇▇▇▇▇▇▇▇▇'s business in such
amounts as Mortgagee may reasonably require but in no event less than $1,000,000
for personal injury or death to one person, $1,000,000 for personal injury or
deaths in one accident and $1,000,000 for property damage; (b) maintain "Broad
form/special perils" insurance on any and all Improvements and Personal Property
located on the Premises against loss by fire or other hazards in an amount not
less than the full insurable value of the Improvements located on the Premises
as Mortgagee may reasonably require, but in no event less than the principal
balance of the Note; (c) in the event any of the Premises is located within a
hundred year flood plain or area designated as subject to flood by the Federal
Emergency Management Agency or other government agency, or when required by any
federal, state or local law, statute, regulation or ordinance, maintain flood
insurance in an amount Mortgagee reasonably deems appropriate; (d) satisfy all
applicable workers' compensation insurance requirements; (e) maintain business
interruption insurance and/or loss of "rental value" insurance in such amounts,
and with such coverages, as may be reasonably satisfactory to Mortgagee, such
insurance to be provided at such time as Mortgagee may specify but in no event
later than the commencement of occupancy by any tenant; (f) during the course of
any construction or repair of the Improvements on the Premises, maintain
builder's completed value risk insurance against "all risks of physical loss,"
including collapse and transit coverage, in nonreporting form, covering the
total value of work performed and equipment, supplies and materials furnished;
(g) obtain and maintain any other insurance concerning the Premises or operation
of business thereon as Mortgagee may reasonably require, including, but not
limited to, any applicable condominium insurance or PUD insurance.
All such policies of insurance shall be written by a
company or companies reasonably acceptable to Mortgagee; shall have attached
thereto the standard form of mortgagee clause; shall name Mortgagee and assigns
as a named insured, loss payee and as Mortgagee, without contribution; shall be
delivered to and held by Mortgagee or assigns; shall provide for thirty (30)
days prior written notice of cancellation or non-renewal to Mortgagee; shall
have attached thereto an agreed amount endorsement; shall include a provision
stating that the waiver of subrogation rights of the insured does not void the
coverage; shall contain endorsements that no act or negligence of the insured or
any occupant and no occupancy or use of the Premises for purposes more hazardous
than permitted by the terms of the policy, nor any breach of any warranty,
declaration or condition by the insured, will affect the validity or
enforceability of such insurance as against Mortgagee; shall contain the
agreement of the insurer waiving all rights of set off, counterclaim or
deductions against Mortgagor.
Mortgagor shall furnish or shall cause to be furnished
to Mortgagee an original policy of all required policies of insurance along with
proof of premiums paid for the current policy year and each subsequent year for
the term of this Mortgage. This Mortgage shall operate as an assignment to
Mortgagee of said policies of insurance, whether delivered or not. At the option
of the Mortgagee, if insurance proceeds are not paid within ninety (90) days of
the casualty or if Mortgagor cannot reinstate its business operations within a
reasonable period of time after the occurrence of a casualty, or if there is a
default, the proceeds of loss under any policy of insurance, whether endorsed
payable to the
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Mortgagee or not, may be applied in payment of the Note or any other sum secured
by this Mortgage, whether or not such sums are then due, or to the restoration
or replacement of any buildings on the Premises without in any way affecting the
lien of this Mortgage or the obligation of the Mortgagor or any other person for
payment of the Indebtedness Hereby Secured.
If the Premises are sold following foreclosure or if
Mortgagee acquires title to the Premises, Mortgagee shall have all the right,
title and interest of the Mortgagor in and to any insurance policies and
unearned premiums thereon and in and to the proceeds resulting from any damage
to the Premises prior to such sale or acquisition.
Upon the failure of Mortgagor to provide or cause to be
provided the aforesaid insurance, Mortgagee shall have the option to procure and
maintain such insurance without notice to Mortgagor. Any sum so expended by
Mortgagee shall at once become indebtedness owing from Mortgagor to Mortgagee
and shall immediately become due and payable by Mortgagor with interest thereon
to the extent legally enforceable, at the rate of interest provided in the Note
in the event of a default, and shall together be added to the Indebtedness
Hereby Secured.
3.4 CONDITION OF PROPERTY; COMPLIANCE WITH LAW; WASTE. To keep the
Premises in good condition and repair and to make all structural and
nonstructural repairs and maintenance necessary and to cause all repairs and
maintenance to be done in a material good and workmanlike manner; to comply in
all material respects with all statutes, laws, ordinances and governmental
rules, regulations and orders which are applicable to the Premises; (except for
items having a value of less than Ten Thousand and 00/100 Dollars ($10,000.00))
not to commit or permit waste on the Premises or remove or permit the removal of
any building, improvement, or fixture from the Premises without prior written
consent of the Mortgagee or unless replaced with an item of greater or equal
value; and not to perform or permit any act which may in any way materially
impair the value of the Premises.
3.5 NO FURTHER ENCUMBRANCES; NO DISPOSITION. Not to make, create, or
suffer to be made or created any sale, transfer, conveyance, assignment or
further encumbrance of the Premises, or any part thereof, or any interest
therein or any contract or agreement to do any of the same without Mortgagee's
prior written consent, which consent may be withheld in Mortgagee's sole and
absolute discretion. A sale, transfer, conveyance or assignment means the
conveyance by the Mortgagor of any legal or equitable right, title or interest
in the Premises, or any part thereof, whether such conveyance is voluntary or
involuntary, by outright sale, deed, installment sale contract, land contract,
lease option contract, or any other method of transferring any interest in real
property, except for the lease from Mortgagor to Guarantor and a license back
from Guarantor to Mortgagor. Any encumbrance means a lien, mortgage or any other
encumbrance subordinate to Mortgagee's Mortgage. Further, in the event of
default under any of the provisions of this Section 3.6, Mortgagee may, without
notice to Mortgagor, deal with such successor or successors in interest with
reference to this Mortgage and the Note and in the same manner as with the
Mortgagor and may forbear to sue or may extend time for payment of the Note
without discharging or in anyway affecting the liability of the Mortgagor
hereunder or under the Note.
3.6 CONDEMNATION. To promptly notify Mortgagee of any action or
proceeding relating to any condemnation or other taking,
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whether direct or indirect of the Premises, or part thereof, and ▇▇▇▇▇▇▇▇▇ shall
appear in and prosecute any such action or proceedings unless otherwise directed
by Mortgagee in writing. Mortgagor authorizes Mortgagee at Mortgagee's option,
as attorney in fact for ▇▇▇▇▇▇▇▇▇, (which authorization shall be irrevocable) to
commence, appear in and prosecute, in Mortgagee's or Mortgagor's name, any
action or proceeding relating to any condemnation or other taking of the
Premises, whether direct or indirect and to settle or compromise any claim in
connection with such condemnation or other taking. The proceeds of any award,
payment or claim for damages, direct or consequential, in connection with any
condemnation or other taking, whether direct or indirect, of the Premises or
any part thereof, or for conveyance in lieu of condemnation, are hereby assigned
to and shall be paid to Mortgagee; and all condemnation money so received shall
be forthwith applied by Mortgagee, at its option in payment of the Note, or any
other sum secured by this Mortgage whether or not such sums are then due, or to
the restoration or replacement of any part of the Premises without in any way
affecting the lien of this Mortgage or the obligation of the Mortgagor or any
other person for payment of Indebtedness Hereby Secured; provided however that
any excess over the balance due under the Note and any other indebtedness
secured by this Mortgage shall be delivered to Mortgagor.
3.7 BOOKS AND RECORDS; FINANCIAL INFORMATION. With respect to the
Premises and the operation thereof, ▇▇▇▇▇▇▇▇▇ will keep or cause to be kept
proper books of record in accordance with generally accepted accounting
principals consistently applied. Mortgagee shall have the right to inspect the
books and records of the operation of the Premises and make copies thereof at
all reasonable times and upon reasonable notice to Mortgagor. Mortgagor shall
furnish to Mortgagee within ninety (90) days after the end of each fiscal year
of Mortgagor, a statement of income and surplus of Mortgagor for such fiscal
year, in reasonable detail and stating in comparative form the figures as of the
end of the previous fiscal year, including statements of income and expense
relating to operations of the Premises, and at the request of Mortgagee,
certified as to the correctness by a certified public accountant. In addition,
▇▇▇▇▇▇▇▇▇ will furnish to Mortgagee such interim financial statements and copies
of federal income tax returns as Mortgagee may reasonably request, certified by
Mortgagor in such form as may be reasonably acceptable to Mortgagee.
3.8 LIABILITY FOR ALL LOAN ADMINISTRATION AND ENFORCEMENT EXPENSES.
Mortgagor shall pay all sums, including costs and reasonable attorney fees for
Mortgagee's outside counsel at such counsel's standard hourly rates for time
actually incurred in the making of the Loan and the administration thereof
including title examination and title insurance premiums and expenses, appraisal
fees, survey fees, inspection fees incurred by Mortgagee to establish or
preserve the lien of this Mortgage or its priority, or in connection with any
suit to enforce this Mortgage to recover the Indebtedness Hereby Secured, or to
protect the security of this Mortgage. All such sums shall be immediately due
and payable, shall bear interest at the highest rate of interest provided in the
Note in the event of default, and shall, together with such interest, be added
to the Indebtedness Hereby Secured.
3.9 APPLICATION OF FUNDS. Unless applicable law provides otherwise, all
payments received by Mortgagee from Mortgagor under the Note or this Mortgage
shall be applied by Mortgagee in the following order of priority:
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(a) Amounts advanced by Mortgagee in accordance with
the terms of this Mortgage, the Note or the Loan Documents,
together with interest thereon;
(b) All late charges, penalties and/or prepayment
penalties due Mortgagee from Mortgagor pursuant to the provisions
of the Note, Mortgage and Loan Documents;
(c) Interest payable on the Note;
(d) Principal balance of the Note; and
(e) All other Indebtedness Hereby Secured.
3.10 ENVIRONMENTAL CONDITIONS. Mortgagor represents and warrants to
Mortgagee (a) that, except as disclosed in environmental reports now or
previously provided to Mortgagee, Mortgagor has no knowledge or information
which would put a reasonable person on notice or cause such person to make
inquiry concerning the likelihood or presence of any hazardous waste condition
or any factor contributing to a risk to the environment located on or emanating
from the Premises; (b) that no environmental enforcement action(s) against or
concerning the Premises are pending or threatened and Mortgagor will notify
Mortgagee if any such action is commenced; (c) that Mortgagor will maintain and
operate the Premises during the term of the Mortgage in material compliance with
all applicable environmental laws of the state where the Premises are located
and of the United States of America; (d) that Mortgagor will remedy any
contamination that may be discovered on the Premises and which is required by
law to be remedied; and (e) the Mortgagor will indemnify and hold Mortgagee
harmless from and against all losses or damages arising from hazardous waste
conditions or risks to the environment which will result in claims against or
liability of Mortgagee as holder of this Mortgage or subsequent owner of the
Premises that are not covered by Mortgagee or its agents or employees or
independent contractors retained by or on behalf of Mortgagee.
3.11 INDEMNIFICATION OF MORTGAGEE. To indemnify Mortgagee for and hold
Mortgagee harmless from and against any loss suffered or any liability, cost or
expense, including without limitation, reasonable attorneys' fees, incurred by
Mortgagee on account of any damage to the person or property of the parties
hereto or of any third parties by reason of or in connection with the use,
operation, maintenance, repair or management of the Premises, whether or not
such damage is partly due to the negligence of Mortgagee, or its employees or
agents, unless such damage was caused solely by the act or acts of Mortgagee or
its employees or agents while on the Premises. Mortgagor shall undertake, at
their sole expense and through counsel satisfactory to Mortgagee, the defense of
Mortgagee in any lawsuit commenced as the result, or alleged to be the result,
of injury or damage occurring by reason of or in connection with the use,
operation, maintenance, repair or management of the Premises.
ARTICLE 4
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EVENTS OF DEFAULT
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Each of the following shall be deemed to be an "Event of Default":
4.1 Default in the payment of principal, interest or any other amounts
due under the Note within five (5) days of when due;
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4.2 Default in the payment of any other Indebtedness Hereby Secured
within five (5) days of when due;
4.3 The failure to obtain and keep in force at all times all insurance
on the Premises and contents thereof and other insurance coverages in accordance
with the terms of this Mortgage and such failure is not fully cured within ten
(10) days after Mortgagee has given written notice thereof to Mortgagor;
4.4 An encumbrance on or sale of the Premises, or any part thereof, in
violation of Section 3.6 herein;
4.5 The filing of any lien unless contested in good faith and with
appropriate reserves established or charge against the Premises or any part
thereof which is not removed or bonded to the satisfaction of Mortgagee within a
period of thirty (30) days thereafter;
4.6 The failure to observe or perform any one or more of the other
terms, covenants or other obligations on the part of Mortgagor sets forth in the
Note, this Mortgage, or the Loan Documents and such default is not fully cured
within thirty (30) days after Mortgagee has given written notice thereof to
Mortgagor; provided, however, that if such default is curable, and if and so
long as Mortgagor is proceeding with due diligence to cure the default, such
period will be extended to whatever reasonable period is required to permit the
Mortgagor to cure the default; provided that such additional curing period does
not, in Mortgagee's sole opinion, jeopardize its vital interest in the Premises;
4.7 The abandonment by ▇▇▇▇▇▇▇▇▇ of all or a part of the Premises;
4.8 In the case where Mortgagor is a corporation, partnership or trust
entity, the dissolution or cessation of existence as a legal entity of
Mortgagor;
4.9 Any certification, representation or warranty of Mortgagor under
this Mortgage or any of the Loan Documents or any other information provided to
Mortgagee by ▇▇▇▇▇▇▇▇▇ or his representatives in connection with the Premises is
determined to have been untrue and/or misleading in any material effect when
made;
4.10 Upon the filing of any bankruptcy proceeding by ▇▇▇▇▇▇▇▇▇ or upon
the filing of any bankruptcy proceeding against Mortgagor which is not dismissed
within sixty (60) days; any assignment by the Mortgagor of any of its property
for the benefit of creditors, or the placing of any of ▇▇▇▇▇▇▇▇▇'s property in
receivership, trusteeship or conservatorship with or without action or suit in
any court;
4.11 The death of any individual, or dissolution of any corporate
partnership or limited liability company, borrower, co-maker or guarantor;
4.12 The insolvency or bankruptcy of a guarantor;
4.13 The occurrence of any Event of Default under any of the other Loan
Documents.
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ARTICLE 5
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REMEDIES
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5.1 MORTGAGEE'S REMEDIES. Upon the occurrence of an Event of Default,
Mortgagee shall have the right to exercise all rights and remedies provided by
law or in equity to which Mortgagee is entitled, including without limitation,
(a) the right to proceed to protect and enforce its rights by any action at law,
in equity or other appropriate proceeding, whether for the specific performance
of any agreement contained herein or for an injunction against a violation of
any of the terms, conditions, or provisions hereof or in the aid of the exercise
of any power granted hereby or by law; (b) the right to declare the entire
amount of the Note and all interest thereon, or, at its option, any part of the
foregoing, to be immediately due and payable without further demand or notice;
(c) the right to, at any time or from time to time, proceed at law or in equity
or otherwise to foreclose the lien on this Mortgage as against all or any part
of the Premises; (d) upon the filing of a suit or other commencement of judicial
proceeding to enforce the rights of the Mortgagee under this Mortgage, Mortgagee
shall be entitled, as a matter of right, to the appointment of a receiver or
receivers of the Premises and to receive all receipts therefrom pending such
proceedings, with such power as the court making such appointment shall confer;
and (e) the right to demand that ▇▇▇▇▇▇▇▇▇ surrenders the possession of the
Premises subject to the rights of any lessee, to take possession of all or any
part of the Premises together with all books, papers and accounts of Mortgagor
pertaining thereto and to operate and manage the same and from time to time to
make all needful repairs and improvements as Mortgagee may deem reasonable; and
to lease the Premises or any part thereof in the name of and for the account of
the Mortgagor and to collect and receive and sequester the rents, revenues and
other income after deducting all proper costs and expenses of so taking, holding
and managing the same including reasonable compensation to Mortgagee.
5.2 RIGHTS AND REMEDIES CUMULATIVE; NO WAIVER OR RELEASE OF OBLIGATION.
The rights and remedies of the Mortgagee as provided in this Mortgage and in the
Note, and in the warranties contained herein and therein shall be cumulative and
concurrent, may be pursued separately, successively or together against
Mortgagor or against the Premises, or both, in the sole discretion of Mortgagee,
and may be exercised as often as occasion therefor shall arise.
Any failure by Mortgagee to insist upon strict perfor-
▇▇▇▇▇ by Mortgagor of any of the terms and provisions of this Mortgage or of the
Note shall not be deemed a waiver of any of the terms or provisions of this
Mortgage or the Note. No delay or omission to exercise any right or power
accruing upon any Event of Default shall impair any right or power or shall be
construed to be a waiver of any such Event of Default or acquiescence therein;
every such right and power may be exercised from time to time and as often as
may be deemed expedient. No waiver of any default or Event of Default hereunder
by the Mortgagee shall extend to or shall affect any subsequent Event of Default
or shall impair any rights or remedies consequent thereon.
Mortgagee may release, regardless of consideration, any
part of the security held for the indebtedness secured by this Mortgage without,
as to the remainder of the security, in any way impairing or affecting the lien
of this Mortgage or its priority over any subordinate lien.
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5.3 EXPENSES. Upon an Event of Default hereunder, ▇▇▇▇▇▇▇▇▇ shall pay
to Mortgagee such further amount as shall be sufficient to reimburse it fully
for all costs and expenses of collection of the Note and the enforcement of any
security for the Note including without limitation, Mortgagee's fees and
expenses for enforcing this Mortgage or any rights hereunder, reasonable
attorneys', accountants' and appraisers' fees and expenses, court costs and any
taxes and fees or governmental charges incident to such enforcement of rights
and collection.
ARTICLE 6
---------
MISCELLANEOUS
-------------
6.1 BINDING EFFECT. All of the terms, covenants and conditions of this
Mortgage shall bind Mortgagor and its respective heirs, devisees,
administrators, executors, successors and assigns and shall inure to the benefit
of and be available to Mortgagee, and its successors and assigns.
6.2 INTERPRETATION; TIME OF THE ESSENCE. All references to Mortgagor
and Mortgagee shall be read in the singular or plural and in the masculine,
feminine, or neuter gender, as the sentence may require. Time is of the essence
with respect to each and every obligation of Mortgagor under the Note, the
Mortgage and the other Loan Documents.
6.3 GOVERNING LAW. This Mortgage shall be governed by the laws of the
State of Ohio. In the event that any provision of this Mortgage conflicts with
applicable law, such conflict shall not affect other provisions of this Mortgage
or the Note which can be given affect without the conflicting provisions, and to
this end the provisions of this Mortgage are declared to be severable.
6.4 COVENANTS RUN WITH LAND. All of the covenants of this Mortgage
shall run with the land constituting the Premises.
6.5 HEADINGS. The headings to the articles and sections hereof are for
reference only and do not limit in any way the content thereof.
6.6 ADDITIONAL ASSURANCES. ▇▇▇▇▇▇▇▇▇ hereby agrees to promptly execute
and deliver such further instruments and assurances and will do such further
acts as Mortgagee may reasonably request to perfect the security interest of
Mortgagee in all or any portion of the Premises and/or to more effectively carry
out the purposes of the Note, Mortgage and/or other Loan Documents.
6.7 OPEN-END MORTGAGE. In accordance with the provisions of Ohio
Revised Code Sections 5301.232 and 5301.233, this Mortgage is given to, and the
parties intend that it shall secure indebtedness in a maximum amount of Eight
Million Five Hundred Thousand and 00/100 Dollars ($8,500,000.00) evidenced by
the Note, which indebtedness may include advances made by Mortgagee, after this
Mortgage is filed of record. The making of such advances is obligatory on the
part of Mortgagee subject to the terms and conditions provided for in the Note,
Mortgage and Loan Documents. The maximum amount of the unpaid balance of such
indebtedness, in the aggregate and exclusive of interest thereon, which is or
will be outstanding at any time, is that set forth above, provided that this
Mortgage shall also secure unpaid balances of advances made for the payment of
taxes, assessments, insurance premiums, or costs incurred for the protection of
the Premises.
11
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6.8 OHIO REVISED CODE SECTION 1311.14. Mortgagor covenants and agree
with Mortgagee that Mortgagee may, at its option, do all things provided to be
done by a Mortgagee under section 1311.14 of the Ohio Revised Code, and any
amendments or supplements thereto, for the protection of Mortgagee's interest in
the Premises.
6.9 OBLIGATIONS UNCONDITIONAL. The obligations of the Mortgagor to
make payments of any and all amounts due hereunder shall be absolute and
unconditional without defense or set-off by reason of any default whatsoever,
including, without limitation a default by any tenant of the Premises under any
lease with the Mortgagor or under any other agreement or instrument between the
Mortgagee and the Mortgagor, and such payments to Mortgagee shall not be
decreased, abated, postponed or delayed for any reason whatsoever, including
without limitation, any acts or circumstances that may constitute failure of
consideration, destruction of or damage to the Premises, the taking of any part
of the Premises, commercial frustration of purpose, failure of any person to
perform or observe any agreement, whether expressed or implied, or any duty,
liability or obligation arising out of or connected with this Mortgage, the
Note, or any other Loan Document, or failure of any resident or occupant of the
Premises to pay the fees, rentals or other charges owed to Mortgagor, and
irrespective of whether or not any such resident or occupant of the Premises
receives either partial or total reimbursement as a credit against such payment,
it being the intention of the parties that the payments required of the
Mortgagor hereunder will be paid in full when due without any delay or
diminution whatsoever.
6.10 WAIVER OF JURY TRIAL. In consideration for the extension of the
Loan to Mortgagor by Mortgagee, ▇▇▇▇▇▇▇▇▇ hereby expressly waives the right to
trial by jury in any lawsuit or proceeding related to this Mortgage or arising
in any way from the Indebtedness Hereby Secured or the transactions between
Mortgagor and Mortgagee.
NOW, THEREFORE, if ▇▇▇▇▇▇▇▇▇ shall well and truly pay and discharge the
Indebtedness Hereby Secured as the same shall become due and payable and shall
perform and observe all of the terms, covenants and conditions to be performed
and observed by ▇▇▇▇▇▇▇▇▇ hereunder then this conveyance shall be null and void
and shall be released by Mortgagee at the expense of Mortgagor; otherwise this
Mortgage is to remain in full force and effect.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇▇ has executed this Mortgage as of the year
and date first above written.
WITNESSES: Mortgagor:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ DURAMED PHARMACEUTICALS, INC.,
------------------------------ a Delaware corporation
Printed: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ---------------------------
------------------------------ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Printed: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ -------------------------
---------------------- Its: Vice President
--------------------------
12
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STATE OF OHIO )
) SS:
COUNTY OF ▇▇▇▇▇▇▇▇ )
The foregoing instrument was acknowledged before me this 24th day of
September, 1997 by ▇▇▇▇▇ ▇▇▇▇▇▇▇ as Vice President of Duramed Pharmaceuticals,
Inc., a Delaware corporation, on behalf of the corporation.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Notary Public
[stamp]
This instrument was prepared by:
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.L.L.
1800 Provident Tower
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
