MORTGAGE AND SECURITY AGREEMENT
$675,000
THIS MORTGAGE AND SECURITY AGREEMENT, dated January 16, 1998 from Disc
Graphics, Inc., 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("Mortgagor") to
KeyBank National Association, a national banking association, 0000 Xxxxx
Xxxxxxx, Xxxxxxxx, Xxx Xxxx 00000 ("Mortgagee").
WITNESSETH, that to secure the payment of an indebtedness evidenced by
Mortgagor's Promissory Note for $675,000 bearing even date herewith, as the same
may be modified, renewed or extended (the "Note"), which sum, with interest
thereon, is to be paid by Mortgagor to Mortgagee in accordance with the terms of
the Note, and also to secure the payment by Mortgagor to Mortgagee of all sums
expended or advanced by Mortgagee pursuant to any covenant, term or provision of
this Mortgage or any other Loan Document (as that term is defined in the Note),
and to secure the performance of each covenant, term and provision by Mortgagor
to be performed pursuant to this Mortgage or any other Loan Document, Mortgagor
hereby mortgages and warrants to Mortgagee, its successors and assigns, the
following property (the "Mortgaged Property") whether now owned or held or
hereafter acquired:
ALL THAT TRACT OR PARCEL OF LAND situate in the State of Indiana, City of
Indianapolis, County of Xxxxxx, and being the same premises described in
Schedule "A" hereto annexed and made a part hereof (the "Premises").
ALL RIGHT, TITLE AND INTEREST of Mortgagor in and to any and all buildings,
structures and improvements, including without limitation, the foundations and
footings thereof, now or at any time hereafter erected, constructed or situated
upon the Premises or any part thereof (the "Improvements").
TOGETHER with all fixtures, chattels and articles of personal property now
or hereafter attached to and used in connection with the Premises, together with
any and all replacements thereof and additions thereto (the "Chattels"). This
Mortgage shall be considered a financing statement pursuant to the provisions of
the Uniform Commercial Code, covering fixtures which are affixed to the
Premises. The types of collateral covered hereby are described in this
paragraph. The debtor is Disc Graphics, Inc. The secured party is KeyBank
National Association. Their addresses are set forth above.
TOGETHER with all right, title and interest, if any, of Mortgagor of, in
and to the bed of any street, road or avenue, opened or proposed, in front of,
adjoining or abutting upon the Premises to the center line thereof.
TOGETHER with any and all awards heretofore and hereafter made with respect
to the Premises by any governmental or other lawful authorities for the taking
by eminent domain of the whole or any part of the Premises, or any easement
therein, including any awards for any changes of grade of streets, which said
awards are hereby assigned to Mortgagee, who is hereby authorized to collect and
receive the proceeds of any such awards from such authorities and to give proper
receipts and acquittances therefor, and to apply the same toward the payment of
the amount owing on account of this Mortgage and the Note, notwithstanding the
fact that the amount owing thereon may not then be due and payable.
TO HAVE AND TO HOLD the Mortgaged Property unto Mortgagee, its
successors and assigns, PROVIDED ALWAYS that if Mortgagor shall pay or cause to
be paid to Mortgagee, its successors and assigns, said principal sum of money
and other charges mentioned and set forth in this Mortgage and in the Note,
together with interest thereon, then and from thence forth, the Mortgaged
Property and the estate hereby granted shall cease, determine and be void.
AND Mortgagor covenants with Mortgagee as follows:
1. Representations. Mortgagor hereby represents and warrants to Mortgagee
as follows:
(a) The Loan Documents are in all respects valid and legally binding
obligations, enforceable in accordance with their respective terms.
(b) The execution and delivery of the Loan Documents by Mortgagor and
any guarantor do not, and the performance and observance by Mortgagor and any
guarantor of their obligations thereunder will not, contravene or result in a
breach of (i) any provision of Mortgagor's certificate of incorporation or
by-laws, or (ii) any governmental requirements, or (iii) any decree or judgment
binding on Mortgagor or any guarantor, or (iv) any material agreement or
instrument binding on Mortgagor or any guarantor or any of their respective
properties, nor will the same result in the creation of any lien or security
interest under any such agreement or instrument.
(c) There are no actions, suits, investigations or proceedings pending
at law, in equity or by any governmental authority, or to the knowledge of
Mortgagor, threatened against or affecting Mortgagor (or any officer, director
or shareholder of Mortgagor), any guarantor or the Mortgaged Property, or
involving the validity or enforceability of any of the Loan Documents or the
priority of the lien thereof, or which will affect Mortgagor's ability to repay
the Note.
(d) Mortgagor represents and warrants that it is the fee simple owner
of the Mortgaged Property free of defects, liens, and encumbrances of any
nature, other than those exceptions to title that are set forth in the policy of
title insurance insuring this Mortgage issued to Mortgagee on the date hereof
("Permitted Exceptions"). Mortgagor warrants that this Mortgage is and shall be
maintained as a valid first lien priority mortgage on the Mortgaged Property,
subject only to the Permitted Exceptions, and shall defend the same against the
claims of all persons. Mortgagor has no knowledge of any violations or notices
of violations of any requirements.
(e) Mortgagor is a Delaware corporation (i) is duly formed and validly
existing under the laws of the state in which it is formed, (ii) if required by
the laws of the state in which the Premises is located, is fully qualified to do
business in Indiana, (iii) has the power, authority and legal right to own and
operate its properties and assets, to carry on the business conducted and
proposed to be conducted by it, and to engage in the transactions contemplated
by the Loan Documents, and (iv) the execution and delivery of the Loan Documents
to which it is a party and the performance and observance of the provisions
thereof have all been duly authorized by all necessary corporate actions.
(f) All utility services necessary and sufficient for the
construction, development and operation of the Mortgaged Property for its
intended purposes are presently available to the Premises through dedicated
public rights of way or through perpetual private easements.
(g) Neither the Mortgaged Property nor any portion thereof is now
damaged as result of any fire, explosion, accident, flood or other casualty or
has been the subject of any taking, and to Mortgagor's knowledge, no taking is
pending or contemplated.
(h) Any brokerage commissions due in connection with the transactions
contemplated hereby have been paid in full and that any such commissions coming
due in the future will be promptly paid by Mortgagor. Mortgagor shall indemnify
Mortgagee from any liability, claims or losses arising by reason of any such
brokerage commissions. This provision shall survive the repayment of the Note
and shall continue in full force and effect so long as the possibility of such
liability, claims or losses exists.
(i) The financial statements of Mortgagor and any guarantor previously
delivered to Mortgagee are true and correct in all respects, have been prepared
in accordance with generally accepted accounting principles consistently
applied, and fairly present the respective financial conditions of Mortgagor and
any guarantor as of the respective dates thereof and the results of their
operations for the periods covered thereby. No material adverse change has
occurred in the assets, liabilities, or financial conditions reflected therein
since the respective dates thereof.
(j) All federal, state and other tax returns of Mortgagor and any
guarantor required by law to be filed have been filed, that all federal, state
and other taxes, assessments and other governmental charges upon Mortgagor and
any guarantor or their respective properties which are due and payable have been
paid or are being contested in good faith, and Mortgagor and any guarantor have
set aside on their books provisions reasonably adequate for the payment of all
taxes for periods subsequent to the periods for which such returns have been
filed.
(k) Mortgagor has made no contract or arrangement of any kind (whether
oral or written, formal or informal), the performance of which by the other
party thereto is expected to give rise to a lien or encumbrance on the Mortgaged
Property, except for contracts (all of which have been disclosed in writing to
Mortgagee) made by Mortgagor with parties who have executed and delivered lien
waivers to Mortgagor, and which will not create rights in existing or future
lien claimants which may be superior to the lien of the Mortgage.
(l) The rights of way for all roads necessary for the full utilization
of the Improvements for their intended purposes have either been acquired by
Mortgagor, the appropriate governmental authority or have been dedicated to
public use and accepted by such governmental authority, and all such roads shall
have been completed, or all necessary steps shall have been taken by Mortgagor
and such governmental authority to assure the complete construction and
installation thereof prior to the date upon which access to the Mortgaged
Property via such roads will be necessary. All curb cuts, driveway permits and
traffic signals necessary for access to the Mortgaged Property are existing or
have been fully approved by the appropriate governmental authority.
(m) No Event of Default (hereinbelow defined) exists and no event
which but for the passage of time, the giving of notice or both would constitute
an Event of Default has occurred.
2. The Indebtedness. Mortgagor will pay the indebtedness as provided
in the Note or in any modification, renewal or extension of the Note.
3. Insurance. Mortgagor shall maintain insurance with respect to the
Premises, the Improvements and the Chattels against such risks and for such
amounts as are customarily insured against by businesses of like size and type,
and shall pay, as the same become due and payable, all premiums in respect
thereto, including but not limited to:
(a) Insurance protecting the interests of Mortgagor and Mortgagee as
their interests may appear against loss or damage to the Improvements by fire,
lightning, flood and other casualties normally insured against, with a uniform
standard extended coverage endorsement, such insurance at all times to be in an
amount of the Note or the total cash replacement value of the Improvements, as
determined at least once every three years by a recognized appraiser or insurer
selected by Mortgagor and approved by Mortgagee.
(b) Boiler and machinery insurance covering physical damage to the
Improvements and to the major components of any central heating, air
conditioning or ventilation systems and such other equipment as Mortgagee shall
designate.
(c) Business interruption insurance in an amount sufficient to allow
Mortgagor to recover 80% of the net income derived from its operations at the
Mortgaged Property.
(d) Workers' compensation insurance, disability benefits insurance,
and such other form of insurance which Mortgagor is required by law to provide,
covering loss resulting from injury, sickness, disability or death of employees
of Mortgagor who are located at or assigned to the Premises.
(e) Insurance protecting Mortgagor and Mortgagee against loss or
losses from liabilities imposed by law or assumed in any written contract and
arising from personal injury and death or damage to the property of others
caused by accident or occurrence, in such amounts as may be designated from time
to time by Mortgagee, excluding liability imposed upon Mortgagor by any
applicable workers' compensation law, or such other amounts as may be required
in writing by Mortgagee; and a blanket excess liability policy in an amount
reasonably satisfactory to Mortgagee protecting Mortgagor and Mortgagee against
any loss or liability or damage for personal injury or property damage.
4. Other Insurance Provisions. (a) All insurance required under this
Mortgage shall be procured and maintained in financially sound and generally
recognized responsible insurance companies selected by Mortgagor and authorized
to write such insurance in the State of Indiana and acceptable to Mortgagee.
Such insurance may be written with deductible amounts comparable to those on
similar policies carried by other entities engaged in businesses similar in
size, character and other respects to those in which Mortgagor is engaged. All
policies evidencing such insurance shall provide for (i) payment of the losses
to Mortgagor and Mortgagee as their respective interests may appear, and (ii) at
least 30 days written notice to Mortgagor and Mortgagee prior to cancellation,
reduction in policy limits or material change in coverage thereof. The insurance
required by Section 3(a) shall contain a standard mortgagee endorsement in favor
of Mortgagee. All insurance required hereunder shall be in form, content and
coverage reasonably satisfactory to Mortgagee. The original policy, or a
certified duplicate copy thereof, for all insurance required hereby shall be
delivered to Mortgagee. The proceeds of any insurance which are paid to
Mortgagee may be applied by Mortgagee toward the payment of any monies secured
by this Mortgage, or, may be paid over, wholly or in part, to Mortgagor for the
repair of the Improvements or for any other purpose or object satisfactory to
Mortgagee. Mortgagor shall deliver to Mortgagee at least 30 days prior to the
expiration date of any insurance coverages required hereunder, a certificate
reciting that there is in full force and effect, with a term covering at least
the next succeeding year, insurance in the amounts and of the types required
hereunder.
(b) Notwithstanding the foregoing, Mortgagee shall allow the use of
such proceeds for the restoration of the Improvements if (i) Mortgagee
determines such proceeds are sufficient to complete the restoration, or if such
proceeds are insufficient for completion of such restoration, Mortgagor deposits
with Mortgagee an amount equal to the difference between Mortgagee's estimated
cost of restoration and the insurance proceeds, or adequate security (in
Mortgagee's reasonable judgment) therefor (ii) there has been no Event of
Default under this Mortgage which continues at the time of such loss, (iii) the
date of the casualty loss is not less than 12 months prior to maturity date of
the Note and (iv) Mortgagor has in effect the business interruption insurance
described in Section 3(c). If the foregoing conditions are met, Mortgagee may
restore the damage, but the use and advancing of the proceeds shall be as
provided in subsection (d) of this Section.
(c) Mortgagor shall give Mortgagee prompt written notice of damage to or
destruction of any Mortgaged Property. If Mortgagee does not require full
payment of the Note within 30 days of the damage or destruction and permits
Mortgagor to use insurance proceeds for the repair thereof, Mortgagor shall
promptly commence and diligently continue to perform the repairs and rebuilding
of the Mortgaged Property so damaged or destroyed (the "Work"). The Work shall
be conducted and completed in full compliance with the provisions hereof and all
legal requirements and so that the Mortgaged Property shall be at least equal in
value and general utility as they were prior to such damage or destruction. If
the cost of the Work in the reasonable judgment of Mortgagee exceeds $75,000
("Major Work"), Mortgagor shall prior to the commencement of the Major Work
furnish to Mortgagee for its approval (i) complete plans and specifications for
the Major Work, with satisfactory evidence of the approval thereof by all
governmental authorities whose approval is required and by an architect
satisfactory to Mortgagee (the "Architect") accompanied by the Architect's
signed estimate of the entire cost of completing the Major Work, (ii) certified
copies of all permits and approvals required by law in connection with the
commencement and conduct of the Major Work, and (iii) either (A) a surety bond
or guaranty of the payment for and completion of the Major Work in form
satisfactory to Mortgagee in an amount not less than the Architect's estimate of
the entire cost of completing the Major Work, less the amount of insurance
proceeds then held by Mortgagee for application toward the cost of the Major
Work or (B) a deposit equal to the difference between Mortgagee's estimated cost
of restoration and such insurance proceeds. After commencing the Major Work,
Mortgagor shall perform the Major Work diligently and in good faith in
accordance with the plans and specifications submitted.
(d) If Mortgagor is permitted under the terms hereof to use the net
insurance proceeds, after any cost to Mortgagee of recovery and of paying out
such proceeds (including reasonable attorneys' fees and costs allocable to
inspecting the Work and the plans and specifications therefor), towards
restoration of the damaged Mortgaged Property, Mortgagee or its agent shall
apply such insurance proceeds as follows:
(i) At Mortgagee's option exercised from time to time, to
Mortgagor or directly to the contractors, subcontractors, materialmen, laborers,
engineers, architects and other persons rendering services or materials for the
Work, as said Work progresses except as otherwise hereinafter provided, but
subject to the following conditions, any of which Mortgagee may freely waive:
(A) The Architect shall be in charge of the Work if it is
Major Work;
(B) Each request for payment shall be made on seven days
notice to Mortgagee and shall be accompanied by a certificate of the Architect
(if one is required) or an officer of Mortgagor stating that (i) all of the Work
completed has been done in compliance with the approved plans and
specifications, if required, and in accordance with all provisions of law, (ii)
the sum requested is to pay or reimburse Mortgagor for payments by Mortgagor to
the contractor, subcontractor, materialmen, laborers, engineers, architects or
other persons rendering services or materials for the Work (giving a brief
description of such services and materials), and that when added to any sums
previously paid out by Mortgagee, does not exceed the estimated value of the
Work done to date of such certificate and (iii) the amount of such proceeds and
other deposits remaining in the hands of Mortgagee is estimated to be sufficient
on completion of the Work to pay for the same in full (giving in such reasonable
detail as Mortgagee may require an estimate of the cost of such completion);
(C) Each request shall be accompanied by waivers of liens satisfactory to
Mortgagee covering any Work previously paid for and with respect to the final
payment request, by a search prepared by the title company which insured the
lien hereof or other evidence satisfactory to Mortgagee that there is not a
mechanic's or other lien or encumbrance in respect of any part of the Work and
that there exist no liens or encumbrances on or affecting any Mortgaged Property
other than Permitted Exceptions;
(D) The request for any payment after the Work has been completed shall be
accompanied by a copy of all certificates, permits, licenses or other documents
required by law to render occupancy of the Premises and Improvements legal.
(ii) Upon completion of the Work and payment in full therefor, or
if Mortgagor fails to commence promptly after collection of the insurance
proceeds or diligently to continue the Work, or at any time upon request by
Mortgagor, Mortgagee may apply the amount of any such proceeds it holds to the
payment of the Note. Nothing herein shall prevent Mortgagee from applying at any
time any such proceeds to the curing of any Event of Default under this Mortgage
or the Note.
5. Alterations. No Improvements shall be structurally altered, removed or
demolished without the prior written consent of Mortgagee.
6. Appointment of Receiver. Mortgagee in any action to foreclose this
Mortgage shall be entitled, without notice and as a matter of right and without
regard to the adequacy of any security of the indebtedness or the solvency of
Mortgagor, upon application to any court having jurisdiction, to the appointment
of a receiver of the rents, income and profits of the Mortgaged Property. If an
Event of Default (hereinbelow defined) occurs under this Mortgage, as a matter
of right and without regard to the adequacy of any security for the Note,
Mortgagor, upon demand of Mortgagee, shall surrender the possession of, and it
shall be lawful for Mortgagee, by such officer or agent as it may appoint, to
take possession, of all or any part of the Mortgaged Property together with the
books, papers, and accounts of Mortgagor pertaining thereto, and to hold,
operate and manage the same, and from time to time to make all needed repairs
and improvements as Mortgagee shall deem wise; and, if Mortgagee deems it
necessary or desirable, to complete construction and equipping of any
Improvements and in the course of such construction or equipping to make such
changes to the same as it may deem desirable; and Mortgagee may sell the
Mortgaged Property or any part thereof, or institute proceedings for the
complete or partial foreclosure of the lien of this Mortgage on the Mortgaged
Property, or lease the Premises or any part thereof in the name and for the
account of Mortgagor or Mortgagee and collect, receive and sequester the rents,
revenues, earnings, income, products and profits therefrom, and out of the same
and any other monies received hereunder pay or provide for the payment of, all
proper costs and expenses of taking, holding, leasing, selling and managing the
same, including reasonable compensation to Mortgagee, its agents and counsel,
and any charges of Mortgagee hereunder, and any taxes and other charges prior to
the lien of this Mortgage which Mortgagee may deem it wise to pay.
7. Payment of Taxes. (a) Mortgagor will pay all taxes, assessments,
sewer rents or water rates or sums due under any payment in lieu of tax
agreement ("Pilot Agreement") and in default thereof, Mortgagee may pay the
same. If Mortgagee shall pay any such tax, assessment, sewer rent or water rate,
Mortgagee shall have the right, among other rights, to declare the amount so
paid with interest thereon immediately due and payable, and upon default of
Mortgagor in paying any such amount with interest thereon, Mortgagee shall have
the right to foreclose for such amount subject to the continuing lien of this
Mortgage for the balance of the mortgage indebtedness not then due.
(b) If Mortgagor fails to pay any sum Mortgagor has agreed to pay
pursuant to this covenant for a period in excess of 60 days after the same is
due and payable, in addition to any other remedies available to Mortgagee
hereunder, Mortgagee may, at its option, require that Mortgagor deposit with
Mortgagee, monthly, one-twelfth of the annual charges for taxes and any other
sums Mortgagor is obligated to pay pursuant to this covenant and Mortgagor shall
make such deposits with Mortgagee. Mortgagor shall simultaneously therewith
deposit with Mortgagee a sum of money which together with the monthly
installments aforementioned will be sufficient to make payment of all sums
required to be paid hereunder at least 30 days prior to the due date of such
payments, it being understood that Mortgagee shall calculate the amount of such
deposits and notify Mortgagor of the sum due. Should an Event of Default occur,
the funds deposited with Mortgagee pursuant to this provision may be applied in
payment of the charges for which said funds shall have been deposited or to the
payment of any other sums secured by this Mortgage as Mortgagee sees fit.
8. [intentionally omitted]
9. Statement of Amount Due. Mortgagor, within five days upon request
in person or within 15 days upon request by mail, shall furnish a written
statement duly acknowledged of the amount due on this Mortgage and whether any
offsets or defenses exist against the said indebtedness.
10. Notices. All notices, consents, approvals and other communications
required or permitted to be given to a party under this Agreement shall be in
writing and shall be delivered personally to the party, sent by any national
overnight courier or mailed first class certified mail, return receipt
requested, to the party at the address indicated on page one, to the attention
of Xxxxxx Xxxxx for Mortgagee, and to the attention of Xxxxxx Xxxxxx and Xxxxx
X. Xxxxx, Esq., general counsel for Mortgagor. Any item delivered in accordance
with the provisions of this Section shall be deemed to have been delivered (i)
on the date of personal delivery, (ii) on the business day following the date
sent by overnight courier or (iii) on the fifth day following the date on which
it was so mailed, as the case may be.
11. Warranty of Title. Mortgagor warrants the title to the Premises,
Improvements and Chattels.
12. Sale in One Parcel. In case of a sale, the Premises may be sold in
one parcel together with the Improvements and Chattels. Should the Premises
consist of more than one parcel, in the event of a foreclosure of this Mortgage
or any mortgage at any time consolidated with this Mortgage, Mortgagor agrees
that Mortgagee shall be entitled to a judgment directing the referee appointed
in the foreclosure proceeding to sell all of the parcels constituting the
Premises at one foreclosure sale, either as a group or separately and that
Mortgagor expressly waives any right that it may now have or hereafter acquire
to (i) request or require that the parcels be sold separately or (ii) request,
if Mortgagee has elected to sell parcels separately, that there be a
determination of any deficiency amount after any such separate sale or otherwise
require a calculation of whether said parcel or parcels separately sold were
conveyed for their "fair market value".
13. [intentionally omitted]
14. Negative Covenants. Mortgagor will not (i) execute an assignment
of the rents, income or profits, or any part thereof from the Mortgaged Property
except to Mortgagee, or (ii) except where the tenant is in default thereunder,
terminate or consent to the cancellation or surrender of any lease of the
Premises or Improvements or of any part thereof, now existing or hereafter to be
made, having an unexpired term of two years or more, except that any lease may
be canceled provided that promptly after the cancellation or surrender thereof a
new lease is entered into with a new tenant having a credit standing, in the
judgment of Mortgagee, at least equivalent to that of the tenant whose lease was
canceled, on substantially the same terms as the terminated or canceled lease,
or modify any such lease so as to shorten the unexpired term thereof or so as to
decrease the amount of the rents payable thereunder, or (iii) accept prepayments
of any sums to become due under such leases, except prepayments of rent for more
than one month in advance or prepayments in the nature of security for the
performance of the tenants thereunder, (iv) in any other manner impair the value
of the Mortgaged Property or the security of this Mortgage, (v) enter into any
lease for all or a substantial part of the Mortgaged Property (other than to an
affiliate of Mortgagor) or (vi) further encumber, alienate, hypothecate, grant a
security interest in or grant any other interest whatsoever in the Mortgaged
Property. No rent reserved under any lease of the Premises or Improvements has
been assigned or anticipated, and no rent for any period subsequent to the date
hereof has been collected in advance of the due date. Mortgagor will not execute
any lease of all or a substantial portion of the Premises or Improvements except
for actual occupancy by the tenant thereunder, and will at all times promptly
and faithfully perform, or cause to be performed, all of the covenants,
conditions and agreements contained in all current or future leases of the
Premises or Improvements required on the part of the landlord to be kept and
performed, and will at all times do all things necessary to compel performance
by the tenant under each lease of all obligations, covenants and agreements by
such tenant to be performed. If any lease provides for tenant's giving status
certificates, Mortgagor shall exercise its right to request such certificates
within five days of any demand therefor by Mortgagee. Mortgagor shall furnish to
Mortgagee, upon request of Mortgagee to do so, a written statement containing
the names of all tenants of the Premises or Improvements, the terms of their
respective leases, the space occupied and the rentals payable thereunder.
15. [intentionally omitted]
16. Books and Records. (a) In addition to any requirements elsewhere in the
Loan Documents, Mortgagor shall keep and maintain at all times at Mortgagors'
addresses stated in this Mortgage, complete and accurate books of accounts and
records adequate to reflect correctly the results of the operation of the
Mortgaged Property and copies of all written contracts, leases and other
instruments which affect the Mortgaged Property. Mortgagor may relocate such
books and records to the extent permitted under the terms of the Credit
Agreement and Security Agreement, both dated February 26, 1997, between
Mortgagor and Mortgagee. Such books, records, contracts, leases and other
instruments shall be subject to examination and inspection at any reasonable
time by Mortgagee.
(b) Upon request of Mortgagee in writing, Mortgagor shall promptly provide
Mortgagee with all documents reasonably requested by Mortgagee prepared in the
form and manner called for in such request and as may reasonably relate to the
operation or condition thereof, or the financial condition of Mortgagor or any
party obligated on the Note or under any guaranty, including, without
limitation, all leases or leasehold interests granted to or by Mortgagor, rent
rolls and tenant lists, rent and damage deposit ledgers, operating statements,
profit and loss statements and balance sheets, personal financial statements of
Mortgagor or income tax returns (including quarterly returns), any or all of
which documents shall be audited or certified as true and accurate by a
certified public accountant, if requested by Mortgagee, and shall cover such
period or periods as may be specified by Mortgagee.
(c) In addition, Mortgagor shall promptly furnish or cause to be furnished
to Mortgagee, to the extent any tenant prepares the same or the same are
required by any tenant's lease, annual financial statements of any tenant of the
Mortgaged Property where such tenant leases 15% percent or more of the gross
leasable area of the Improvements, each such statement to be delivered as soon
as practicable following the end of each fiscal year of such tenant, but in any
event within 120 days thereafter, and each such statement to include balance
sheets, statements of operations and statements of changes in financial position
as of the end of such year.
(d) So long as the Note is outstanding, Mortgagor shall furnish Mortgagee
with the financial statements and information required under the terms of the
Credit Agreement dated February 26, 1997 between them, and shall comply with all
affirmative and negative covenants set forth in such Credit Agreement.
(e) Mortgagee or its agents will have the right of access and to inspect
and copy all records at Mortgagor's premises at all times during normal business
hours and upon reasonable notice.
(f) All other loans or debt of Mortgagor, including specifically but
without limitation, any loans from any guarantor, shall be subordinate in
payment and priority to the Note and any other loans from Mortgagee to
Mortgagor.
17. Future Laws. If after the date of this Mortgage of any federal, state
or municipal law is enacted, deducting from the value of land for the purposes
of taxation any lien thereon, or changing in any way, the laws for the taxation
of mortgages or debts secured by mortgages, or the manner of collection of any
such taxes so as to affect Mortgagee, this Mortgage, or said indebtedness,
Mortgagee shall have the right to accelerate payment of said indebtedness upon
30 days notice to Mortgagor, whereupon payment of said indebtedness shall become
due, payable and collectible.
18. [intentionally omitted]
19. Provisions regarding use of Mortgaged Property. Mortgagor is not
responsible for any action or omission, and does not know of any action or
omission by any prior owner, that would cause the Mortgaged Property to be
subject to forfeiture pursuant to any law, rule or regulation (a "Forfeiture").
The Mortgaged Property has not been acquired with any proceeds from a
transaction or an activity that would cause the Mortgaged Property to be subject
to Forfeiture, and Mortgagor shall not use, and will not permit any third party
to use, the Mortgaged Property or any portion thereof or interest therein for
any purpose or activity that would cause a Forfeiture.
20. Actions and Proceedings. If any action or proceeding is commenced to
which Mortgagee is made a party and in which it becomes necessary in the opinion
of Mortgagee to defend or uphold the lien of this Mortgage, all sums paid by
Mortgagee for the expense of any litigation to prosecute and defend the rights
and lien created by this Mortgage, including reasonable counsel fees, costs and
allowances, shall, together with interest thereon be a lien on the Mortgaged
Property and secured by this Mortgage and shall be collectible like said
indebtedness and paid on demand.
21. Security Interest under the Uniform Commercial Code. Mortgagee is
authorized to sign as the agent of Mortgagor such additional agreements as
Mortgagee at any time may deem necessary or proper or require to grant to
Mortgagee a perfected security interest in the Chattels. If Mortgagor declines
to do so, then Mortgagee is authorized to file financing statements (as such
term is defined in said Uniform Commercial Code) with respect to the Chattels,
at any time, without the signature of Mortgagor. Mortgagor will, however, at any
time upon request of Mortgagee, sign such financing statements. Mortgagor will
pay all filing fees for the filing of such financing statements and for the
refiling thereof at the times required, in the opinion of Mortgagee, by said
Uniform Commercial Code. If the lien of this Mortgage is subject to any security
agreement covering the Chattels, then in the event of any default under this
Mortgage, all the right, title and interest of Mortgagor in and to any and all
of the Chattels is hereby assigned to Mortgagee, together with the benefit of
any deposits or payments now or hereafter made thereof by Mortgagor or the
predecessors or successors in title of Mortgagor in the Mortgaged Property.
22. Condemnation. (a) Any and all awards heretofore and hereafter made to
Mortgagor and all subsequent owners of the Mortgaged Property by any
governmental or other lawful authorities for the taking by eminent domain of the
whole or any part of the Mortgaged Property or any easement therein, including
any awards for any changes of grade of streets, are hereby assigned to
Mortgagee, who is hereby authorized to collect and receive the proceeds of any
such awards from such authorities, to give proper receipts and acquittances
therefor and to apply the same toward the payment of the amount owing on account
of this Mortgage and said indebtedness, notwithstanding the fact that the amount
owing thereon may not then be due and payable; and Mortgagor hereby covenants
and agrees, upon request, to make, execute and deliver any and all assignments
and other instruments sufficient for the purpose of assigning the aforesaid
awards to Mortgagee free, clear and discharged of any and all encumbrances of
any kind or nature whatsoever. Mortgagor shall continue to make all payments
required by the Note until any such award shall have been actually received by
Mortgagee and any reduction in said indebtedness resulting from the application
by Mortgagee of such award shall be deemed to take effect only on the date of
such receipt.
(b) Notwithstanding the foregoing, if any one or more of the portions
of the Mortgaged Property described below shall be damaged or taken through
condemnation, either temporarily or permanently, then the entire balance due
under the Note and any other Loan Documents shall, at the option of Mortgagee,
become immediately due and payable:
(i) Any portion or portions of the Improvements or the support or
foundation of any portion or portions of the Improvements; or
(ii) Ten percent or more of any parking area; or
(iii) Any portion or portions of the Premises which, when so damaged or
taken, would result either in (A) an impairment of access to the Improvements
from the publicly dedicated rights of way now adjoining the Premises, or (B) the
failure of the Improvements to comply with any building code, zoning or other
governmental laws or regulations, lease or other agreement to which the
Mortgaged Property is subject.
(c) Mortgagor authorizes Mortgagee, at Mortgagee's option, as attorney
in fact for Mortgagor, to commence, appear in and prosecute in Mortgagor's or
Mortgagee's name, any action or proceeding relating to any condemnation or other
taking of the Mortgaged Property and to settle or compromise any claim in
connection with such condemnation or other taking, but Mortgagor also shall have
the right to have its own co-counsel in any such proceeding and to approve any
settlement.
23. No Defenses. This Mortgage is a valid first priority lien securing
the debt represented by the Note and there are no defenses or offsets to this
Mortgage or to the said indebtedness.
24. Leases of the Mortgaged Property. Mortgagor will not lease all or
any portion of the Mortgaged Property (other than to an affiliate of Mortgagor)
without Mortgagee's consent. If such consent is given, all leases covering more
than 15% of the gross leasable area of the Mortgaged Property must require the
tenant to provide Mortgagee with annual financial statements of the tenant
certified to by an independent certified public accountant. Mortgagor, at
Mortgagee's request, shall furnish Mortgagee with executed copies of all leases
hereafter made of all or any part of the Mortgaged Property, and all leases now
or hereafter entered into will be in form and substance subject to the approval
of Mortgagee.
25. Transfer of Mortgaged Property. The full amount of the outstanding
indebtedness secured hereby, with all accrued interest, shall be immediately due
and payable at Mortgagee's option in the event of the sale, conveyance or
transfer, by deed, lease (other than as permitted herein), any other voluntary
or involuntary act or by operation of law or otherwise (including the entry into
any land sale contract, sale-leaseback arrangement or other similar agreement)
of any interest in any of the Mortgaged Property, or if any other mortgages,
liens or encumbrances are placed on the Mortgaged Property other than Permitted
Exceptions.
26. Access. Mortgagee, by its employees or agents, shall at all times have
the right to enter upon the Mortgaged Property during reasonable business hours
for the purpose of examining and inspecting the same.
27. [intentionally omitted]
28. Performance of Mortgagor's Covenants by Mortgagee. In the event of any
default in the performance of any of the covenants, terms, or provisions of
Mortgagor under this Mortgage, Mortgagee may, at the option of Mortgagee,
perform the same and the cost thereof, with interest, shall immediately be due
from Mortgagor to Mortgagee and secured by this Mortgage.
29. Remedies not Exclusive. Mortgagee shall have the right from time to
time, to take action to recover any amounts of past due principal indebtedness
and interest thereon, or any installment of either, or any other sums required
to be paid under the covenants, terms and provisions of this Mortgage or the
Note, as the same become due, whether or not the principal indebtedness secured,
or any other sums secured by the Note or this Mortgage shall be due, and without
prejudice to the right of Mortgagee thereafter to bring an action of
foreclosure, or any other action, for default or defaults by Mortgagor existing
at the time such earlier action was commenced.
30. Additional Acts and Documents. Mortgagor covenants that it will do,
execute, acknowledge, deliver, file or record, or cause to be recorded every and
all such further acts, deeds, conveyances, advances, mortgages, transfers and
assurances, in law as Mortgagee shall require for the better assuring,
conveying, transferring, mortgaging, assigning and confirming unto Mortgagee all
and singular the Mortgaged Property.
31. Remedies Cumulative. The rights and remedies herein afforded to
Mortgagee shall be cumulative and supplementary to and not exclusive of any
other rights and remedies afforded the holder of this Mortgage and the Note.
32. Successors. All of the provisions of this Mortgage shall inure to the
benefit of Mortgagee and of any subsequent holder of this Mortgage and shall be
binding upon Mortgagor and each subsequent owner of the Mortgaged Property.
33. Effect of Releases. Mortgagee, without notice, may release any part of
the security described herein, or any person or entity liable for any
indebtedness secured hereby without affecting the lien hereof upon any part of
the security not expressly released, and may agree with any party obligated on
said indebtedness or having any interest in the security described herein to
extend the time for payment of any part or all of the indebtedness secured
hereby. Such agreement shall not release or impair the lien hereof, but shall
extend the lien hereof as against the title of all parties having any interest
in said security, which interest is subject to said lien, and no such release or
agreement shall release any person or entity obligated to pay any indebtedness
secured hereby.
34. Waivers. Any failure by Mortgagee to insist upon Mortgagor's strict
performance of any of the covenants, terms and provisions of this Mortgage shall
not be deemed to be a waiver thereof. Notwithstanding any such failure,
Mortgagee shall have the right thereafter to insist upon the strict performance
by Mortgagor of any and all of the covenants, terms and provisions of this
Mortgage. Neither Mortgagor nor any other person or entity now or hereafter
obligated for the payment of the whole or any part of said indebtedness shall be
relieved of such obligation by reason of (i) the failure of Mortgagee to comply
with any request of Mortgagor, or of any other person or entity so obligated,
(ii) the failure of Mortgagee to take action to foreclose this Mortgage or
otherwise enforce any of the covenants, terms and provisions of this Mortgage or
the Note, (iii) the release, regardless of consideration, of the whole or any
part of the security held for payment of said indebtedness or (iv) any agreement
or stipulation between any subsequent owner or owners of the Mortgaged Property
and Mortgagee modifying the covenants, terms and provisions of this Mortgage or
the Note without first having obtained the consent of Mortgagor or such other
person or entity. In the last mentioned event, Mortgagor and all such other
persons or entities shall continue liable to make such payments according to the
terms and provisions of any such agreement or extension or modification unless
expressly released and discharged in writing by Mortgagee. Mortgagee may
release, regardless of consideration, any part of the security held for payment
of said indebtedness without, as to the remainder of the security, in any way
impairing or affecting the lien of this Mortgage or the priority of such lien
over any subordinate lien. Mortgagee may resort for the payment of said
indebtedness to any other security therefor held by Mortgagee in such order and
manner as Mortgagee may elect.
35. Interest on Advances. Wherever under this Mortgage or by law Mortgagee
is entitled to interest on advances made or expenses incurred, it shall be
computed at the interest rate payable under the Note.
36. Mortgagee not Obligated. Nothing herein contained shall be construed as
making the payment of any insurance premiums, taxes or assessments obligatory
upon Mortgagee, although Mortgagee may pay same, or as making Mortgagee liable
in any way for loss, damage or injury, resulting from the non-payment of any
such insurance premiums, taxes or assessments.
37. [intentionally omitted]
38. Environmental Warranties and Covenants. (a) Except as may otherwise be
set forth on a Schedule hereto, Mortgagor makes the following representations
and warranties: (i) Mortgagor is in compliance in all material respects with all
applicable federal, state and local laws and regulations, including, without
limitation, those relating to toxic and hazardous substances and other
environmental matters (the "Laws"), and to the extent Mortgagor is not in
compliance (whether material or not), Mortgagor shall remedy promptly any
non-compliance, (ii) Mortgagor does not use any portion of the Mortgaged
Property in a manner that is not in material compliance with Laws, and to
Mortgagor's best knowledge, the Mortgaged Property was not at any previous time
used for the disposal, storage, treatment, processing or other handling of any
hazardous or toxic substances in a manner that did not comply with the Laws,
(iii) the soil and any surface water and ground water which are a part of the
Mortgaged Property do not contain any solid wastes, toxic or hazardous substance
or contaminant which exceeds applicable action levels under applicable Laws and
(iv) neither the federal government nor the State of Indiana Department of
Environmental Conservation or any other governmental or quasi governmental
entity has filed a lien on the Mortgaged Property, nor are there any
governmental, judicial or administrative actions with respect to environmental
matters pending, or to the best of Mortgagor's knowledge, threatened, which
involve the Mortgaged Property.
(b) Mortgagor agrees that Mortgagee or its agents or representatives
may in its judgment reasonably exercised, at any reasonable time and at
Mortgagor's expense inspect Mortgagor's books and records and inspect and
conduct any sampling or other tests on the Mortgaged Property to determine
whether Mortgagor is in continuing compliance with the Laws, subject to the
provisions of paragraph 3(b) of the Hazardous Substances Indemnity Agreement of
even date to which Mortgagor is a party.
(c) If any environmental contamination is found on the Mortgaged
Property for which any removal or remedial action is required pursuant to Law,
ordinance, order, rule, regulation or governmental action, Mortgagor agrees that
it will at its sole cost and expense, take such removal or remedial action
promptly and in accordance with Laws.
(d) Mortgagor agrees to defend, indemnify and hold harmless Mortgagee,
its employees, agents, officers and directors from and against any claims,
actions, demands, penalties, fines, liabilities, settlements, damages, costs or
expenses (including, without limitation, reasonable attorney and consultant
fees, investigations and laboratory fees, court costs and litigation expenses of
whatever kind or nature known or unknown, contingent or otherwise) arising out
of or in any way related to (i) the past or present disposal, release or
threatened release of any hazardous or toxic substances on the Mortgaged
Property; (ii) any personal injury (including wrongful death or property damage)
arising out of or related to such hazardous or toxic substances; (iii) any
lawsuit brought, settlement reached or government order given relating to such
hazardous or toxic substances; and/or (iv) any violation of any law, order,
regulation, requirement, or demand of any government authority, or any policies
or requirements of Mortgagee, which are based upon or in any way related to such
hazardous or toxic substances.
(e) To Mortgagor's best knowledge, Mortgagor has not used any on-site or
off-site locations where hazardous or toxic substances from the operation of any
Improvement or otherwise have been stored, treated, recycled or disposed of,
other than in accordance with Laws.
(f) With respect to any lease or other occupancy of the Mortgaged Property
(if consented to by Mortgagee), Mortgagor shall not knowingly permit the
occupant, tenant or subtenant to conduct operations at the Mortgaged Property in
a manner which involves use of hazardous or toxic substances other than in
compliance with Laws.
(g) Mortgagor acknowledges that any action Mortgagee takes under this
Mortgage shall be taken to protect Mortgagee's security interest only; Mortgagee
does not hereby intend to be involved in the operations of Mortgagor.
(h) Mortgagor acknowledges that any determinations Mortgagee makes under
this Section regarding compliance with environmental laws shall be made for
Mortgagee's benefit only and are not intended to be relied upon by any other
party.
(i) The provisions of this Section shall be in addition to any other
obligations and liabilities Mortgagor may have to Mortgagee at common law, and
shall survive the transactions contemplated herein.
(j) The term "hazardous substance" shall include, without limit, any
substance or material defined in 42 U.S.C. Section 9601 (as the same may be
amended from time to time), the Hazardous Materials Transportation Act (as
amended from to time), and the Resource Conservation And Recovery Act (as each
may be amended from time to time) and in any regulations adopted or promulgated
pursuant to any of the foregoing.
39. Events of Default. The whole of the principal sum of the
indebtedness secured hereby and interest thereon, and all other sums due and
payable hereunder shall become due, at the option of Mortgagee, if one or more
of the following events (an "Event of Default") shall happen:
(a) The occurrence of an "Event of Default" under the Note, any other Loan
Document, under any other loan or debt of Mortgagor to Mortgagee, or under any
other loan or debt from any guarantor to Mortgagee; or
(b) If Mortgagor defaults in the payment of any tax, water rate or sewer
rent or payment under any Pilot Agreement against the Mortgaged Property for 30
days after the same become due and payable or fails to exhibit to Mortgagee,
within 30 days after demand, receipts showing payment of all taxes, water rates
or sewer rents; or
(c) The actual or threatened removal, demolition or structural alteration,
in whole or in material part, of any Improvement, without the prior written
consent of Mortgagee; or the removal, demolition or destruction in whole or in
material part, of any Chattels without replacing the same with Chattels at least
equal in quality and condition to those replaced, free from any security
interest or other encumbrance thereon and free from any reservation of title
thereto; or the commission of any material waste in respect to the Mortgaged
Property; or
(d) Failure of Mortgagor to pay within 15 days after notice and demand
any installment of any assessment made against the Premises for local
improvements, heretofore or hereafter made, which assessment is, or may become,
a lien on the Premises prior to the lien of this Mortgage; or
(e) Failure of Mortgagor to pay the said indebtedness secured by this
Mortgage within 30 days after notice and demand, in the event of the passage
after the date of this Mortgage of any federal, state or municipal law deducting
from the value of land for the purpose of taxation any lien thereon, or changing
in any way the laws now in force for the taxation of mortgages, or of debts
secured by mortgages, or the manner of collection of any such taxes, so as to
affect Mortgagee, this Mortgage or the indebtedness which is secured,
notwithstanding that Mortgagor, before or after such notice, may have the option
to pay or contest the payment of such tax; or
(f) Failure of Mortgagor to maintain the Improvements on the Premises
in a rentable or tenantable state of repair to the reasonable satisfaction of
Mortgagee, for 30 days after notice of such failure has been given to Mortgagor,
or to comply with any order or requirement of any municipal, state, federal or
other governmental authority having jurisdiction of the Premises within 30 days
after such order or requirement shall have been issued by any such authority; or
failure of Mortgagor or of any tenant holding under Mortgagor, to comply with
any and all and singular the statutes, requirements, orders or decrees of any
federal, state or municipal authority relating to the use of the Mortgaged
Property, or of any part thereof; or failure of Mortgagor to observe and timely
perform all of the covenants, terms and provisions contained in any lease now or
hereafter affecting the Premises or the Improvements or any portion thereof, on
the part of the landlord to be observed and performed; or
(g) Failure of Mortgagor, if a final judgment for the payment of money
is entered against Mortgagor, to discharge such judgment or to have it stayed
pending appeal within 30 days from the entry thereof, or if such judgment shall
be affirmed on appeal, the failure to discharge such judgment within 30 days
from the entry of such affirmance; or
(h) Failure of Mortgagor to pay within 15 days after notice and demand
any filing or refiling fees required hereunder; or
(i) Failure of Mortgagor or any occupant of the Mortgaged Property, to
allow or permit Mortgagee, or its duly authorized agent, to inspect said
Mortgaged Property on reasonable notice from time to time during business hours;
or
(j) Default for 15 days after notice and demand in the observance or
performance of any other covenant or agreement under this Mortgage; or
(k) If any warranty or representation of Mortgagee contained herein or
any other Loan Document is false or misleading in any material respect, or if
any such statement omits to state any material fact which, by reason of such
omission, is false or misleading; or
(l) Occurrence of an "Event of Default" under the Promissory Note
executed and delivered by Mortgagor to Mortgagee on even date herewith.
40. Interest to Accrue. If the whole of the principal sum evidenced by
the Note and interest, shall become due by exercise of the option of Mortgagee
after default by Mortgagor under any of the terms, covenants and conditions of
this Mortgage or the Note, or if the whole of said principal sum and interest
shall mature and become due under the terms, covenants and conditions of this
Mortgage and the Note regardless of default, if any, on the part of Mortgagor,
then interest on said principal sum shall continue to accrue at the rate
provided for in the Note, and in this Mortgage, until said principal sum is
fully paid.
41. Flood Insurance. In addition to the terms and provisions of this
Mortgage with regard to insurance, if the Premises are determined to be in a
special flood hazard area as determined by any governmental agency, Mortgagor
shall insure the Premises and Improvements against loss or damage by flood, with
coverage as is therein provided for by fire and other specified perils to the
same extent and effect as if such flood insurance was therein specifically set
forth.
42. Costs, Expenses and Attorney's Fees. If after an Event of Default
an action is commenced for the foreclosure of this Mortgage, Mortgagee shall be
entitled to recover all sums due hereunder, statutory costs, and any additional
allowances, including reasonable attorneys' fees in such proceeding and in all
proceedings related to the foreclosing proceeding, and such amount shall be
added to the principal balance and interest then due and shall be a lien on the
Mortgaged Property prior to any right or title to, interest in or claim upon the
Mortgaged Property attaching and accruing subsequent to the lien of this
Mortgage, and shall be deemed to be secured by this Mortgage and the
indebtedness which it secures.
43. Intervening Liens. Should any agreement be hereafter entered into
modifying or changing the terms of this Mortgage or the Note secured hereby in
any manner, the rights of the parties to such agreement shall be superior to the
rights of the holder of any intervening lien.
44. Terms. It is understood and agreed that the words, "Mortgagor" and
"Mortgagee" herein shall include the successors and assigns of Mortgagee and to
the extent permitted hereby, the heirs, successors and assigns of Mortgagor.
Where used herein, the word, "Mortgagor" may be read "Mortgagors" where
applicable.
45. Entire Agreement. This Mortgage and the other Loan Documents
constitute the entire understanding between Mortgagor, any guarantors, and
Mortgagee and to the extent that any writings not signed by Mortgagee or oral
statements or conversations at any time made or had shall be inconsistent with
the provisions of this Mortgage and the other Loan Documents, the same shall be
null and void.
46. Governing Law; Severability. This Mortgage shall be governed by
the law of the jurisdiction in which the Mortgaged Property is located. In the
event that any provision or clause of this Mortgage or the Note conflicts with
applicable law, such conflict shall not affect other provisions of this Mortgage
or the Note which can be given effect without the conflicting provision, and to
this end, the provisions of this Mortgage and the Note are declared to be
severable.
47. Time of the Essence. Time is of the essence with respect to each
and every covenant, agreement and obligation of Mortgagor under this Mortgage,
the Note and any and all other Loan Documents.
48. Indemnification; Subrogation; Waiver of Offset. (a) Mortgagor
shall indemnify, defend and hold Mortgagee harmless against: (i) any and all
claims for brokerage, leasing, finders or similar fees which may be made
relating to the Mortgaged Property or the loan which is the subject of the Note,
and (ii) against any and all liability, obligations, losses, damages, penalties,
claims, actions, suits, costs, and expenses (including its reasonable attorneys'
fees, together with reasonable appellate counsel fees, if any) of whatever kind
or nature which may be imposed on or incurred by Mortgagee at any time pursuant
either to a judgment or decree or other order entered into by a court or
administrative agency or to a settlement reasonably approved by Mortgagor, which
judgment, decree, order or settlement relates in any way to or arises out of the
offer, sale or lease of the Mortgaged Property or the ownership, use, occupation
or operation of any portion of the Mortgaged Property.
(b) If Mortgagee is made a party defendant to any litigation
concerning the loan which is the subject of the Note, this Mortgage, the
Mortgaged Property, or any part thereof, or any interest therein, or the
occupancy thereof, then Mortgagor shall indemnify, defend and hold Mortgagee
harmless from all liability by reason of said litigation, including reasonable
attorneys' fees (together with reasonable appellate counsel fees, if any) and
expenses incurred by Mortgagee in any such litigation, whether or not any such
litigation is prosecuted to judgment. If Mortgagee commences an action against
Mortgagor to enforce any of the terms hereof or to prosecute any breach by
Mortgagor of any of the terms hereof or to recover any sum secured hereby,
Mortgagor shall pay to Mortgagee such reasonable attorneys' fees (together with
reasonable appellate counsel fees, if any) and expenses. The right to such
attorneys fees (together with reasonable appellate counsel fees, if any) and
expenses shall be deemed to have accrued on the commencement of such action, and
shall be enforceable whether or not such action is prosecuted to judgment. If
Mortgagor breaches any term of this Mortgage, Mortgagee may employ an attorney
or attorneys to protect its rights hereunder, and in the event of such
employment following any breach by Mortgagor, Mortgagor shall pay Mortgagee
reasonable attorneys' fees (together with reasonable appellate counsel fees, if
any) and expenses incurred by Mortgagee, whether or not an action is actually
commenced against Mortgagor by reason of such breach.
(c) A waiver of subrogation shall be obtained by Mortgagor from its
insurance carrier and, consequently, Mortgagor waives any and all right to claim
or recover against Mortgagee, its officers, employees, agents and
representatives, for loss of or damage to Mortgagor, the Mortgaged Property,
Mortgagor's property or the property of others under Mortgagor's control from
any cause insured against or required to be insured against by the provisions of
this Mortgage.
(d) All sums payable by Mortgagor hereunder shall be paid without notice
(except as may otherwise be provided herein), demand, counterclaim, set-off,
deduction or defense and without abatement, suspension or reduction, and the
obligations and liabilities of Mortgagor hereunder shall in no way be released,
discharged or otherwise affected by reason of: (i) any damage to or destruction
of or any condemnation or similar taking of the Mortgaged Property or any part
thereof; (ii) any restriction or prevention of or interference with any use of
the Mortgaged Property or any part thereof; (iii) any title defect or
encumbrance or any eviction from the Premises or the Improvements or any part
thereof by title superior or otherwise; (iv) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation, or other like
proceeding relating to Mortgagee, or any action taken with respect to this
Mortgage by any trustee or receiver of Mortgagee, or by any court, in such
proceeding; (v) any claim which Mortgagor has, or might have, against Mortgagee;
(vi) any default or failure of Mortgagee to perform or comply with any of the
terms hereof or of any other agreement with Mortgagor; or (vii) any other
occurrence whatsoever, whether similar or dissimilar to the foregoing, whether
or not Mortgagor shall have notice or knowledge of any of the foregoing.
Mortgagor waives all rights now or hereafter conferred by statute or otherwise
to any abatement, suspension or reduction of any sum secured hereby and payable
by Mortgagor.
49. Waiver of Jury Trial. Mortgagor and Mortgagee hereby waive trial
by jury in any litigation in any court with respect to, in connection with, or
arising out of this Mortgage or any other Loan Document, or any instrument or
document delivered in connection with the loan
which is the subject of the Note, or the validity, protection, interpretation,
collection or enforcement thereof, or the relationship between Mortgagor and
Mortgagee as borrower and lender, or any other claim or dispute howsoever
arising between Mortgagor and Mortgagee.
IN WITNESS WHEREOF, this Mortgage has been duly executed by Mortgagor.
Disc Graphics, Inc.
By:_____________________________
Name: Xxxxxxxx Xxxxxxxx
Title: Chief Financial Officer
SCHEDULE A
DESCRIPTION
Lots 61, 62, 63, 64, 65, 66, 67 and 30 feet by parallel lines off the entire
south side of lot numbered 68 in Xxxxx and Xxxxxx'x Addition to the City of
Indianapolis, as per plat thereof, recorded in Plat Book 10, page 108, in the
Office of the Recorder of Xxxxxx County, Indiana.
STATE OF NEW YORK )
) ss.:
COUNTY OF SUFFOLK )
On January 16, 1998, before me, the undersigned, a Notary Public in New
York State, personally appeared Xxxxxxxx Xxxxxxxx personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that she
executed the same in her capacity, and that by her signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.
------------------------------
Notary Public
This instrument was prepared by Xxxxxxx Xxxxxxxxx, an
attorney at law.
After recording, please return to:
Xxxxxxx Xxxxxxxxx, Esq.
XxXxxxxx, Rather, Xxxxxxx & Xxxxxx, P.C.
00 Xxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
