MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT AND
ASSIGNMENT OF RENTS
Secured Property Address: Hurco Companies, Inc. International Headquarters
One Technology Way
Park 100 Business Park
Indianapolis, Indiana 46268
THIS MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT AND ASSIGNMENT
OF RENTS ("Mortgage") is executed as of April 30, 2002, by and between HURCO
COMPANIES, INC., an Indiana corporation, whose address is One Technology Way, P.
O. Box 68180, Indianapolis, Indiana 46268-0180, ("Mortgagor") and AMERICAN
EQUITY INVESTMENT LIFE INSURANCE COMPANY, an Iowa corporation, whose mailing
address is P. O. Box 71216, Des Moines, Iowa 50325, (such party, together with
any holder or holders of all or any part of the "Secured Indebtedness" (as
hereinafter defined) shall be referred to herein as "Mortgagee").
ARTICLE I
DEFINITIONS
Section 1.1. As used in this Mortgage, the following terms shall have
the meanings indicated, unless the context otherwise requires:
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980(42 U.S.C. ss.ss. 9601 et seq.),
as amended from time to time, including, without limitation, the
Superfund Amendments and Reauthorization Act ("SARA").
"Code" shall mean the Uniform Commercial Code, as amended from
time to time, in effect in the State where the Land is situated.
"Default" shall have the meaning assigned to such term in
Section 6.1.
"Environmental Law" shall mean any federal, state or local
law, statute, ordinance, or regulation pertaining to health, industrial
hygiene, or the environmental conditions on, under or about the
Mortgaged Property, including but not limited to, CERCLA, SARA and
RCRA.
"Hazardous Substance" shall mean one or more of the following
substances:
(i) Those substances included within the
definitions of "hazardous substances," "hazardous materials,"
"toxic substances," or "solid waste" in CERCLA, SARA,
RCRA, Toxic Substances Control Act, as amended,
15 U.S.C.ss. 2601 et seq., and the Hazardous Materials
Transportation Act (49 U.S.C.ss. 1801 et seq.), and in the
regulations promulgated pursuant to said laws;
(ii) Those substances listed in the United States
Department of Transportation Table (49 CFR 172.101 and
amendments thereto) or by the Environmental Protection Agency
(or any successor agency) as hazardous substances (40 CFR Part
302 and amendments thereto);
(iii) Such other substances, materials and wastes
which are or become regulated under applicable local, state or
federal law, or the United States government, or which are
classified as hazardous or toxic under federal, state, or
local laws or regulations; and
(iv) Any material, waste or substance which is:
(A) asbestos; (B) polychlorinated biphenyls; (C) designated
as a "hazardous substance" pursuant to Section 311 of the
Clean Water Act, 33 U.S.C. Sections 1251 et seq.
(33 U.S.C.ss.1321) or listed pursuant to Section 307 of the
Clean Water Act (33 U.S.C.ss.1317); (D) petroleum or petroleum
distillate; (E) explosives; or (F) radioactive materials.
"Improvements" shall mean all buildings, structures and
improvements now or hereafter situated on the Land.
"Land" shall mean the tract of real property described upon
Exhibit "A" attached hereto.
"Leases" shall mean all present and future leases and
agreements, written or oral, for the use or occupancy of any portion of
the Mortgaged Property, and any renewals, extensions or substitutions
of said leases and agreements and any and all subleases thereunder.
"Lessee" shall mean the lessee, sublessee, tenant or other
person having the right to occupy, use or manage the Mortgaged
Property, or any part thereof, under a Lease.
"Lien" shall mean any lien, judgment lien, mortgage, deed of
trust, mechanic's lien, materialmen's lien, pledge, conditional sale
agreement, title retention agreement, financing lease, security
interest or other encumbrance, whether arising by contract or under
law.
"Loan Documents" shall mean the Note and this Mortgage,
together with all documents, agreements, certificates, affidavits,
guaranties, loan agreements, security agreements, deeds of trust,
collateral pledge agreements, assignments and contracts representing,
evidencing or securing any or all of the Secured Indebtedness or
executed in connection therewith.
"Mortgage" shall have the meaning assigned to such term in the
preamble hereof.
"Mortgaged Property" shall have the meaning assigned to such
term in Section 2.1.
"Mortgagee" shall have the meaning assigned to such term in
the preamble hereof.
"Mortgagor" shall have the meaning assigned to such term in
the preamble to this Mortgage.
"Mortgagor's Successors" shall mean each and all of the heirs,
executors, administrators, legal representatives, successors and
assigns of Mortgagor, both immediate and remote.
"Note" shall mean that certain Promissory Note, of even date
herewith, in the original principal amount of Four Million Five Hundred
Thousand Dollars ($4,500,000), executed by Mortgagor payable to the
order of Mortgagee, and providing that the principal balance thereof
shall be due and payable in 2009 on the date which is seven (7) years
from the date of this Mortgage, which date is the Maturity Date, as
defined in the Note.
"Obligated Party" shall mean any guarantor, surety, endorser
or other party (other than Mortgagor) directly or indirectly obligated,
primarily or secondarily, for any portion of the Secured Indebtedness.
"Permitted Exceptions" shall mean the exceptions, if any, to
title described upon Exhibit "B" attached hereto.
"Person" shall mean any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock
company, trust, unincorporated organization, government or any agency
or political subdivision thereof, or any other form of entity.
"Personal Property" shall mean all of the following described
properties and interests, now owned or hereafter acquired by Mortgagor,
and all accessories, attachments and additions thereto and all
replacements or substitutes therefor and all products and proceeds
thereof, and accessions thereto:
(i) All of the fixtures, building materials,
inventory, furniture, appliances, furnishings, goods,
equipment, and machinery and all other tangible personal
property now or hereafter used primarily in connection with
the operation of the Real Estate, but excluding in all events
all production machinery and equipment, office furniture and
furnishings, computers, and other tangible personal property
intended for use in the business operations of Mortgagor;
(ii) All insurance proceeds, surveys, plans and
specifications, drawings, permits, licenses, warranties,
guaranties, deposits, prepaid expenses and contract rights
now, or hereafter arising from or related to the ownership of
any of the Real Estate;
(iii) All Rents and Leases;
(iv) All general intangibles relating to the
development or use of the Real Estate, including but not
limited to all governmental permits relating to construction
on the Real Estate, all names under or by which the Real
Estate may at any time be operated or known, and all rights to
carry on the business under any such names or any variant
thereof, and all trademarks and goodwill in any way relating
to the Real Estate;
(v) All water rights and water stock relating to the
Real Estate that is owned by Mortgagor in common with others,
and all documents of membership in any owners' or members'
association or similar group having responsibility for
managing or operating any part of the Real Estate; and
(vi) All proceeds and claims arising on account of
any damage to or taking of the Real Estate or any part
thereof, and all causes of action and recoveries for any loss
or diminution in the value of the Real Estate and all rights
of the Mortgagor under any policy or policies of insurance
covering the Real Estate or any rents relating to the Real
Estate and all proceeds, loss payments and premium refunds
which may become payable with respect to such insurance
policies.
"RCRA" shall mean the Resource Conservation and Recovery Act
of 1976 (42 U.S.C. Section 6901 et seq.), as amended from time to time.
"Real Estate" shall mean the Land and the Improvements.
"Rents" shall mean the rents, income, receipts, revenues,
issues and profits now due or which may become due or to which
Mortgagor may now or hereafter become entitled or may demand or claim,
arising or issuing from or out of the Leases or from or out of the
Mortgaged Property, or any part thereof, including, without limitation,
minimum rents, additional rents, percentage rents, common area
maintenance charges, parking charges (including monthly rental for
parking spaces), tax and insurance premium contributions, and
liquidated damages following default, premiums payable by any Lessee
upon the exercise of any cancellation privilege provided for in any of
the Leases, and all proceeds payable under any policy of insurance
covering the loss of rent resulting from untenantability caused by
destruction or damage of the Mortgaged Property, together with any and
all rights and claims of any kind which Mortgagor may have against any
Lessee or against any other occupants of the Mortgaged Property.
"Rights" shall mean rights, remedies, powers, benefits and
privileges.
"Sale" shall mean any sale, transfer, lease or other
disposition made pursuant to Subsection 6.2(h).
"Secured Indebtedness" shall have the meaning given such term
in Section 3.1.
ARTICLE II
GRANT
Section 2.1. Grant. For good and valuable consideration, including the
debt hereinafter described, the receipt and legal sufficiency of which is hereby
expressly acknowledged by all parties, Mortgagor does hereby MORTGAGE AND
WARRANT unto Mortgagee, and Mortgagee's successors and assigns, the following
described property, subject to the Permitted Exceptions:
(i) The Land, together with (A) the Improvements; (B) all
estates, easements, interests, licenses, Rights and titles of Mortgagor
in and to the Land and all easements and rights-of-way used in
connection with the Land or the Improvements or as a means of ingress
to or egress from the Land or the Improvements; (C) all estates,
easements, interests, licenses, Rights and titles, if any, of Mortgagor
in and to the real estate lying in the streets, roads, alleys, ways,
sidewalks, or avenues, open or proposed, in front of, or adjoining, the
Land, and in and to any strips or gores of real estate adjoining the
Land; (D) all passages, waters, water rights, water courses, riparian
rights, other Rights appurtenant to the Land, as well as any
after-acquired title, franchise or license, and the reversions and
remainders thereof; and (E) all estates, easements, licenses,
interests, Rights and titles appurtenant or incident to the foregoing;
(ii) The Personal Property; and
(iii) All other estates, easements, licenses, interests,
Rights and titles of every kind and character which Mortgagor now has,
or at any time hereafter acquires, in and to the Land, the
Improvements, the Personal Property, and all property which is used or
useful in connection with the Land, the Improvements, and the Personal
Property, including without limitation (A) all proceeds payable in lieu
of or as compensation for the loss of or damage to any of the
foregoing; (B) all awards made by any public body or decreed by any
court of competent jurisdiction for a taking or for degradation of
value in any eminent domain proceeding involving any of the foregoing;
and (C) the proceeds of any and all insurance (including without
limitation, title insurance) covering the Land, the Improvements, the
Personal Property, and any of the foregoing.
All property and interests described or referred to in Subsections (i), (ii),
and (iii) of this Section 2.1, together with any additional interest therein now
owned, or hereafter acquired, by Mortgagor, are sometimes hereinafter
collectively called the "Mortgaged Property".
TO HAVE AND TO HOLD the Mortgaged Property, together with all and singular the
rights, hereditaments, and appurtenances in anywise appertaining or belonging
thereto, unto Mortgagee and Mortgagee's successors and assigns forever,
PROVIDED, NEVERTHELESS, that these presents are upon the express condition that
if Mortgagor shall pay or cause to be paid the Secured Indebtedness, and if
Mortgagor shall duly and punctually perform and observe all of the terms,
covenants, agreements and conditions contained in this Mortgage, the Note, and
all the Loan Documents, then this Mortgage and the estate, right and interest of
Mortgagee in and to the Mortgaged Property shall cease and become void and of no
force and effect, and shall be satisfied at Mortgagor's expense; otherwise, this
Mortgage shall remain in full force and effect.
Section 2.2. Warranty of Title. Mortgagor, for Mortgagor and
Mortgagor's Successors, hereby agrees to warrant and forever defend, all and
singular, good and marketable unencumbered fee simple title to the Mortgaged
Property unto Mortgagee, and Mortgagee's successors or assigns, forever, against
every person whomsoever lawfully claiming, or to claim, the same or any part
thereof, subject, however, to the Permitted Exceptions. The foregoing warranty
of title shall survive the foreclosure of this Mortgage and shall inure to the
benefit of and be enforceable by any person who may acquire title to the
Mortgaged Property pursuant to such foreclosure.
ARTICLE III
SECURED INDEBTEDNESS
Section 3.1. Secured Indebtedness. This Mortgage, and all Rights, and
all titles, interests and Liens created hereby, or arising by virtue hereof, are
given to secure payment and performance of the following indebtedness,
liabilities, and obligations (herein collectively called the "Secured
Indebtedness"):
(i) All loans, principal, interest, late charges, fees,
premiums, expenses, obligations and liabilities owing by Mortgagor to
Mortgagee arising pursuant to, evidenced by or represented by the Note;
(ii) All indebtedness, liabilities, and obligations arising
under this Mortgage or under any of the other Loan Documents; and
(iii) Any and all renewals, increases, extensions,
modifications, rearrangements, or restatements of the Note or all or
any part of the loans, advances, future advances, indebtedness,
liabilities, and obligations described or referred to in Subsections
3.1(i) through (ii), together with all costs, expenses, and reasonable
attorneys' fees incurred in connection with the enforcement or
collection thereof.
ARTICLE IV
REPRESENTATIONS, WARRANTIES
AND COVENANTS OF MORTGAGOR
Section 4.1. Representations and Warranties. Mortgagor expressly
represents and warrants to Mortgagee as follows:
(a) Organization. Mortgagor (i) is an Indiana corporation duly
organized, validly existing and in good standing under the laws of the
state of its incorporation and is qualified to do business under the
laws of the state where the Land is situated, (ii) has complied with
all conditions prerequisite to its lawfully doing business in the state
where the Land is situated, and (iii) has all requisite corporate power
and all governmental certificates of authority, licenses, permits,
qualifications, and documentation to own, lease and operate its
properties and to conduct its business as now being, and as proposed to
be, conducted.
(b) Authority. Mortgagor has full and lawful authority and
power to execute, acknowledge, deliver, and perform this Mortgage and
the other Loan Documents executed by Mortgagor and such Loan Documents
constitute the legal, valid, and binding obligations of Mortgagor and
any other party thereto, enforceable against Mortgagor and such other
parties in accordance with their respective terms, except as limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws of
general application affecting creditors' rights generally.
(c) Place of Business. Mortgagor's principal place of
business, chief executive office, location of its account records,
mailing address and address for notices hereunder is set forth in the
preamble hereof.
(d) Title. Mortgagor is the lawful record owner of good and
marketable title to the Mortgaged Property, subject only to the
Permitted Exceptions. No Liens exist in or against the Mortgaged
Property, other than those Liens which have been identified in writing
in the title insurance commitment delivered to Mortgagee, all of which
will be satisfied and released contemporaneously with the closing under
the Note and Loan Documents. All portions of the Mortgaged Property
have full and free access to and from public streets and utilities'
services and connections.
(e) Conflicts. Neither the execution and delivery of the Loan
Documents, nor consummation of any of the transactions therein
contemplated, nor compliance with the terms and provisions thereof,
will contravene or conflict with any provision of law, statute or
regulation to which Mortgagor is subject or any judgment, license,
order or permit applicable to Mortgagor or any indenture, mortgage,
deed of trust, agreement or other instrument to which Mortgagor is a
party or by which Mortgagor or the Mortgaged Property may be bound, or
to which Mortgagor or the Mortgaged Property may be subject, or violate
or contravene any provision of the Articles of Incorporation or Bylaws
of Mortgagor.
(f) Information Provided. All reports, statements, financial
statements, cost estimates and other data, furnished by or on behalf of
Mortgagor or any Obligated Party including, without limitation, any
surveys, as-built plans and specifications, and commitments for title
insurance are true and correct in all material respects.
(g) Defaults. No event has occurred and is continuing which
constitutes a Default or would, with the lapse of time or giving of
notice or both, constitute a Default.
(h) Taxes. All taxes, assessments and other charges
levied against the Mortgaged Property have been paid in full.
(i) Flood Hazards. Neither the Land nor any portion thereof is
located within an area that has been designated or identified as an
area having special flood hazards by the Secretary of Housing and Urban
Development or by such other official as shall from time to time be
authorized by federal or state law to make such designation pursuant to
the National Flood Insurance Act of 1968, as such act may from time to
time be amended, or pursuant to any other national, state, county or
city program of flood control.
(j) Performance of Covenants Under Leases. Mortgagor has
duly and punctually performed all and singular the terms, covenants,
conditions and warranties of the existing Leases on Mortgagor's
part to be kept, observed and performed up to the date hereof.
(k) Collection of Advance Rents. Any Rents due for occupancy
for any period subsequent to the date hereof have not been collected
for more than one (1) month in advance of accrual and payment of any
Rents has not otherwise been anticipated, waived, released, discounted,
set-off or otherwise discharged or compromised.
(l) No Defaults. No Lessee under any existing Lease
is in default of any of the terms thereof.
(m) Homestead. No part of the Mortgaged Property
constitutes a part of a business or residential homestead.
(n) Commercial Loan. The Secured Indebtedness constitutes a
contract under which credit is extended for business, commercial,
investment, or other similar purpose, and is not for personal, family,
household, or agricultural use. Mortgagor represents and certifies that
the extension of credit secured by this Mortgage is exempt from any and
all provisions of the Federal Consumer Credit Protection Act
(Truth-in-Lending Act) and Regulation "Z" of the Board of Governors of
the Federal Reserve System.
Section 4.2. Covenants. So long as this Mortgage shall remain
in effect, Mortgagor covenants and agrees with Mortgagee as follows:
(a) Taxes. To pay, or cause to be paid (not later than ten
(10) days before the date upon which such items would become
delinquent), all lawful taxes and assessments of every character in
respect of any of the Mortgaged Property, and to furnish to Mortgagee
(not later than ten (10) days prior to the date upon which such taxes
or assessments would become delinquent) evidence satisfactory to
Mortgagee of the timely payment of such taxes and assessments, provided
that so long as Mortgagor has timely paid all taxes and assessments
into the reserve fund required under Section 9.4, Mortgagor shall not
be required to provide such evidence, and, provided further, Mortgagor
shall not be required to pay any such tax or assessment if and so long
as the amount, applicability or validity thereof is being contested in
good faith by appropriate legal proceedings and appropriate cash
reserves therefor have been deposited with Mortgagee in an amount equal
to the amount being contested plus a reasonable additional sum to cover
costs, legal fees and expenses, interest and penalties.
(b) Insurance.
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(i) Mortgaged Property. To carry insurance with
respect to the Mortgaged Property with such insurers, in such
amounts and covering such risks as shall be satisfactory to
Mortgagee, including, without limitation, insurance against
loss or damage by fire, extended coverage, lightning, hail,
windstorm, explosion, riot, hazards, casualties, and other
contingencies; provided, that in the absence of written
direction from Mortgagee, the insurance shall not be less than
the full replacement cost of the Improvements. Such insurance
shall be sufficient to prevent Mortgagor from being or
becoming a "co-insurer" of the Mortgaged Property and shall
include the standard non-contributory mortgage clause.
(ii) Public Liability. To carry liability insurance
covering occurrences that may arise in the Mortgaged Property
as a result of the operations thereon, with such insurers and
in such amounts as shall be acceptable to Mortgagee; and to
carry workers' compensation insurance sufficient to meet all
statutory requirements, as may be amended from time to time.
(iii) Loss of Rents. To carry insurance covering loss
of rents and/or business interruption with respect to the
Mortgaged Property for a period of not less than one year.
(iv) Delivery of Policies. To deliver to
Mortgagee a true and complete copy of each policy of
insurance covering the Mortgaged Property.
(v) Mortgagee as Named Insured: Payment of Insurance
Proceeds. To cause all insurance carried by Mortgagor covering
the Mortgaged Property to name Mortgagee as an insured and to
be payable to Mortgagee as its interest may appear, and, in
the case of all policies of insurance carried by each Lessee
for the benefit of Mortgagor, to cause all such policies to be
payable to Mortgagee as its interest may appear.
(vi) Payment of Premiums; Proof. To cause to be paid,
pursuant to Section 9.4 hereof, all premiums for such
insurance before such premiums become due and to deliver all
renewal policies to Mortgagee at least fifteen (15) days
before the expiration date of each expiring policy and to
cause such policies to require the insurer to give written
notice to Mortgagee of any amendment or termination of any
such policy at least thirty (30) days before such termination
or amendment is to be effective.
(vii) Review of Values. Upon the written request of
Mortgagee, not more than once during each thirty-month period
following the date of this Mortgage, to increase the amount of
insurance covering the Mortgaged Property to its then full
insurable value.
(viii) Notice of Casualty. To immediately deliver
written notice to Mortgagee of any casualty loss affecting the
Mortgaged Property that would cost more than $10,000 to repair
or replace.
(c) Compliance with Laws. To comply with all valid
governmental laws, ordinances, rules, and regulations applicable to the
Mortgaged Property and its ownership, use, and operation, and to comply
with all, and not violate any, easements, restrictions, agreements,
covenants, and conditions with respect to or affecting the Mortgaged
Property, or any part thereof; provided, however, Mortgagor shall not
be required to comply with such items if and so long as the
applicability or validity thereof is being contested diligently in good
faith by appropriate legal proceedings and appropriate reserves have
been set aside by Mortgagor.
(d) Condition of Mortgaged Property. To maintain, preserve,
and keep the Mortgaged Property in good repair and condition at all
times and, from time to time, to make all necessary and proper repairs,
replacements, and renewals, to complete or repair any Improvements in a
good and workmanlike manner, and not to abandon or commit or permit any
waste on or of the Mortgaged Property, and not to do anything to the
Mortgaged Property that may impair its value.
(e) Payments for Labor and Materials. To pay promptly all
bills for labor, materials and equipment incurred in connection with
the Mortgaged Property and never to permit to be affixed against the
Mortgaged Property, or any part thereof, any Lien, even though inferior
to the liens and security interests hereof, for any such bill which may
be legally due and payable; provided, however, Mortgagor shall not be
required to pay any such bill if the amount, applicability or validity
thereof is being contested in good faith by appropriate legal
proceedings and Mortgagor has furnished to Mortgagee a bond in form and
substance acceptable to Mortgagee with corporate surety satisfactory to
Mortgagee or other security satisfactory to Mortgagee, in an amount
equal to the amount being contested plus a reasonable additional sum to
cover possible costs, legal fees and expenses, interest and penalties,
and provided further that Mortgagor shall pay any amount adjudged by a
court of competent jurisdiction to be due, with all costs, interest and
penalties thereon, in order to release any such Lien on the Mortgaged
Property, or any part thereof.
(f) Further Assurances. To execute and deliver forthwith to
Mortgagee, at any time and from time to time upon request by Mortgagee,
any and all additional instruments (including, without limitation,
deeds of trust, mortgages, security agreements, assignments and
financing statements) and further assurances, and to do all other acts
and things at Mortgagor's expense, as may be necessary or proper, in
Mortgagee's reasonable opinion, to effect the intent of these presents,
to more fully evidence and to perfect, the rights, titles and Liens,
herein created or intended to be created hereby and to protect the
Rights of Mortgagee hereunder.
(g) Maintenance of Existence: Authority To Do Business.
To maintain continuously Mortgagor's existence and Mortgagor's
right to do business in the state where the Real Estate is located
under all applicable laws.
(h) Prohibition Against Liens. Without the prior written
consent of Mortgagee, not to create, incur, permit or suffer to exist
in respect of the Mortgaged Property, or any part thereof, any other or
additional Lien on a parity with or superior or inferior to the liens
and security interests hereof; provided, however, if any such Lien now
or hereafter affects the Mortgaged Property or any part thereof,
Mortgagor covenants to timely perform all covenants, agreements and
obligations required to be performed under or pursuant to the terms of
any instrument or agreement creating or giving rise to such Lien.
(i) Limitation on Dispositions.
(i) Prohibition on Sale or Transfer. Mortgagor
acknowledges that Mortgagee has examined both the
creditworthiness of Mortgagor and Mortgagor's experience in
owning and operating properties such as the Mortgaged Property
in determining whether or not to make the loan secured hereby,
that Mortgagee has relied on Mortgagor's creditworthiness and
experience in deciding to make the loan secured hereby, and
that Mortgagee will continue to rely on Mortgagor's ownership
of the Mortgaged Property as a means of maintaining the value
of the Mortgaged Property as security for repayment of the
Debt. Mortgagor acknowledges that Mortgagee has a valid
interest in maintaining the value of the Mortgaged Property so
as to ensure that, should Mortgagor default in the repayment
of the Note, Mortgagee can recover the balance of the Note by
a sale of the Mortgaged Property. Mortgagor shall not, without
the prior written consent of Mortgagee, (A) sell, trade,
transfer, assign, exchange, or otherwise dispose of the
Mortgaged Property, or any part thereof or any interest
therein (whether legal or equitable in nature), except items
of Personal Property which have become obsolete or worn beyond
practical use and which have been replaced by adequate
substitutes having a value equal to or greater than the
replaced items when new, or (B) permit the change in control
(by way of transfers of stock ownership, partnership interest,
or otherwise) in Mortgagor. In the event Mortgagor violates
the terms of this prohibition, the entire indebtedness owing
under the Note and any other Loan Document shall immediately
become due and payable at the option of Mortgagee.
Notwithstanding the foregoing, and provided that no Default
exists hereunder, Mortgagee agrees to permit one (1) transfer
of the Mortgaged Property to, and assumption of the Loan by,
another person or entity; provided, however, that no such
transfer shall be valid or permitted hereunder unless: (i)
Mortgagee receives prior written notice at least thirty (30)
days in advance of such proposed transfer, (ii) such proposed
transferee has been approved in writing by Mortgagee, which
approval shall be at Mortgagee's sole discretion, taking into
consideration such factors as, but not limited to,
transferee's creditworthiness, business experience, financial
condition and real estate experience, (iii) approval by
Mortgagee of the proposed new property management of the
Mortgaged Property, (iv) Mortgagee shall be paid a transfer
and assumption fee in the amount of one percent (1%) of the
then-outstanding principal balance and accrued interest of the
Note, (v) Mortgagor pays all fees and expenses incurred by
Mortgagee in connection with such transfer and assumption,
including without limitation, inspection and investigation
fees, title insurance charges and reasonable attorneys' fees,
and (vi) such proposed transferee and any guarantor required
by Mortgagee in connection therewith assumes all obligations
of Mortgagor and any Obligated Party under the Note, this
Mortgage and other Loan Documents with the same degree of
liability of Mortgagor and any such Obligated Party. This
one-time right of transfer and assumption shall apply only to
the Mortgagor named herein and not to any subsequent owner of
the Mortgaged Property.
(ii) Operation. The provisions hereof shall be
operative with respect to, and be binding upon any persons
who, in accordance with the terms hereof or otherwise, shall
acquire any part or interest in or encumbrance upon the
Mortgaged Property. Any waiver by the Mortgagee of the
provisions hereof shall not be deemed to be a waiver of the
right of the Mortgagee in the future to insist upon strict
compliance with the provisions hereof.
(j) Financial Statements. To deliver to Mortgagee, within
ninety (90) days after the end of each calendar year, a copy of
Mortgagor's most recent federal income tax return and then-current
audited annual financial statements of Mortgagor in form and substance
acceptable to Mortgagee, certified by an independent certified public
accountant. At a minimum, such financial statements shall include a
balance sheet and income statement for Mortgagor, a report itemizing
the income and expenses for the operation of Mortgaged Property, and a
current rent roll, all in form and detail as shall be satisfactory to
Mortgagee. Mortgagor shall also cause each Guarantor to deliver to
Mortgagee, within ninety (90) days after the end of each calendar year,
then-current financial statements of each such Guarantor, certified as
true and correct by the Guarantor.
(k) Tax on Liens. At any time any law shall be enacted
imposing or authorizing the imposition of any tax upon this Mortgage,
or upon any rights, titles, liens, or security interests created
hereby, or upon the Secured Indebtedness, or any part thereof, to pay
immediately all such taxes to the extent permitted by law; provided
that, if it is unlawful for Mortgagor to pay such taxes, then Mortgagor
shall, if Mortgagee so requires, prepay the Secured Indebtedness in
full within sixty (60) days after demand therefor by Mortgagee.
(l) Statement of Balance of Secured Indebtedness. At any time
and from time to time, to furnish promptly upon request, a written
statement or affidavit, in such form as shall be satisfactory to
Mortgagee, stating the unpaid balance of the Secured Indebtedness and
that there are no offsets or defenses against full payment of the
Secured Indebtedness and the terms hereof, or, if there are any such
offsets and defenses, specifically describing such offsets to the
satisfaction of Mortgagee.
(m) Inspections; Books, Records. During all business hours to
allow any representative of Mortgagee to inspect the Mortgaged Property
and all books and records of Mortgagor, and to make and take away
copies of such books and records. Mortgagor shall maintain complete and
accurate books and records in accordance with good accounting
practices.
(n) Removal of Personalty. Not to cause or permit any of the
Personal Property to be removed from the Land, except items of Personal
Property which have become obsolete or worn beyond practical use and
which have been replaced by adequate substitutes having a value equal
to, or greater than, the replaced items when new.
(o) Warrant and Defend Title. To protect, warrant and forever
defend title to the Mortgaged Property unto Mortgagee, its successors
and assigns, against all persons whomsoever lawfully having or
otherwise claiming an interest therein or a lien thereon, but Mortgagee
shall have the right, at any time, to intervene in any suit affecting
such title and to employ independent counsel in connection with any
such suit to which it may be a party by intervention or otherwise; and
upon demand Mortgagor agrees to pay Mortgagee all reasonable expenses
paid or incurred by Mortgagee in respect of any such suit affecting
title to any such property or affecting Mortgagee's lien or rights
hereunder, including reasonable fees to Mortgagee's attorneys, and
Mortgagor will indemnify and hold harmless Mortgagee from and against
any and all costs and expenses, including, but not limited to, any and
all cost, loss, damage or liability which Mortgagee may suffer or incur
by reason of the failure of the title to all or any part of the
Mortgaged Property or by reason of the failure or inability of
Mortgagor, for any reason, to convey the rights, titles and interests
which this Mortgage purports to mortgage or assign, and all amounts at
any time so payable by Mortgagor hereunder shall be secured by the lien
hereof and by the said assignment.
(p) Payment of Expenses. To promptly pay and hold Mortgagee
harmless from all reasonable appraisal fees, survey fees, recording
fees, abstract fees, title policy fees, escrow fees, attorneys' fees,
brokers' fees and all other costs of every kind incurred by Mortgagee
in connection with the Secured Indebtedness, the collection thereof and
the exercise by Mortgagee of its rights and remedies hereunder and
under the other Loan Documents.
(q) Obligations Under Personal Property. Mortgagor shall
perform fully all obligations imposed upon it by the agreements and
instruments constituting part of the Personal Property (including,
without limitation, the Leases) and maintain in full force and effect
all such agreements and instruments.
(r) Notice of Claims. Mortgagor shall promptly notify
Mortgagee of any claim, action or proceeding affecting any Lease or
title to the Mortgaged Property, or any part thereof, or the Liens
herein granted.
(s) Leases.
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(i) Defense of Actions Respecting Leases. Mortgagor
shall appear in and defend any action or proceeding arising
under, occurring out of, or in any manner connected with, the
Leases or the obligations, duties or liabilities of Mortgagor
and any Lessee thereunder, and, upon request by Mortgagee,
shall do so in the name and on behalf of Mortgagee but at the
expense of Mortgagor, and Mortgagor shall pay all costs and
expenses of Mortgagee, including reasonable attorneys' fees,
in any action or proceeding in which Mortgagee may appear.
(ii) Receipt of Future Rents. Mortgagor shall not
receive or collect any Rents from any of the Leases for a
period of more than one (1) month in advance.
(iii) Waivers, Releases of Lessees. Except in the
ordinary course of business, Mortgagor shall not waive,
discount, set-off, compromise, or in any manner release or
discharge any Lessee, of and from any obligations, covenants,
conditions and agreements by said Lessee to be kept, observed
and performed, including the obligation to pay rent in the
manner and at the place and time specified in any Lease, or in
any manner impair the value of the Mortgaged Property or the
security of this Mortgage.
(iv) Termination of Leases. Except in the ordinary
course of business, Mortgagor shall not terminate or consent
to any surrender of any Lease, or modify or in any way alter
the terms thereof, without the prior written consent of
Mortgagee, and shall use all reasonable efforts to maintain
each of the Leases in full force and effect during the term of
this Mortgage.
(v) No Subordination. Mortgagor shall not
subordinate any Lease to any mortgage or other encumbrance
(other than the Lien of this Mortgage), or permit,
consent or agree to such subordination.
(vi) Form of Leases, Side Agreements. Unless
otherwise consented to in writing by Mortgagee, Mortgagor
shall, prior to the execution of any new leases, (A) obtain
Mortgagee's approval as to the form and substance of each
Lease or amendment thereto; (B) deliver to Mortgagee true and
complete copies of the Leases and any amendments thereto; (C)
not enter into any oral leases or any side agreements with
respect to a Lease with any Lessee, except upon notice to and
approval in writing by Mortgagee; (D) not execute any Lease
except for actual occupancy by the Lessee thereunder; (E) from
time to time upon request of Mortgagee, furnish to Mortgagee a
written certification signed by Mortgagor describing all then
existing Leases and the names of the tenants and Rents payable
thereunder, and (F) not enter into any Lease with Mortgagor or
an affiliate of Mortgagor.
(t) Alterations. To make no material alterations in the
Mortgaged Property, except as required by law or municipal
ordinance, without Mortgagee's prior written consent.
(u) Payment of Utilities. To pay promptly all charges for
utilities or services related to the Mortgaged Property,
including, without limitation, electricity, gas, sewer and
water.
ARTICLE V
PROVISIONS REGARDING ENVIRONMENTAL LAWS
Section 5.1. Covenants Regarding Environmental Compliance.
Mortgagor covenants and agrees with Mortgagee as follows:
(a) Hazardous Substance Use, Manufacture. Mortgagor shall not
use, generate, manufacture, produce, store, release, discharge, or
dispose of on, under, or about the Mortgaged Property or transport to
or from the Mortgaged Property any Hazardous Substance or allow any
other person or entity to do so except under conditions permitted by
applicable laws (including all Environmental Laws).
(b) Compliance with Environmental Laws. Mortgagor shall
keep and maintain the Mortgaged Property in compliance with, and shall
not cause or permit the Mortgaged Property to be in violation of,
any Environmental Law.
(c) Notices. Mortgagor shall give prompt written notice to
Mortgagee of:
(i) any proceeding or inquiry by any governmental
authority with respect to the presence of any Hazardous
Substance on the Mortgaged Property or the migration thereof
from or to other property;
(ii) all claims made or threatened by any third party
against Mortgagor or the Mortgaged Property relating to any
loss or injury resulting from any Hazardous Substance; and
(iii) Mortgagor's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of
the Mortgaged Property that could cause the Mortgaged Property
or any part thereof to be subject to any restrictions on the
ownership, occupancy, transferability or use of the Mortgaged
Property under any Environmental Law, or to be otherwise
subject to any restrictions on the ownership, occupancy,
transferability or use of the Mortgaged Property under any
Environmental Law.
(d) Filings with Agencies. Mortgagor shall provide to
Mortgagee copies, contemporaneously with filing same, of all reports,
inventories, notices or other forms filed or submitted to the
Environmental Protection Agency, or any state or local agency having
responsibility for overseeing or enforcing any Environmental Laws.
(e) Legal Proceeding. Mortgagee shall have the right to join
and participate in, as a party if it so elects, any legal proceedings
or actions initiated with respect to the Mortgaged Property in
connection with any Environmental Law and have Mortgagee's attorneys'
fees in connection therewith paid by Mortgagor.
(f) Indemnity. Mortgagor shall protect, indemnify and hold
harmless Mortgagee, its directors, officers, employees, agents,
successors and assigns from and against any and all loss, damage, cost,
expense or liability (including attorneys' fees and costs) directly or
indirectly arising out of or attributable to the use, generation,
manufacture, production, storage, release, threatened release,
discharge, disposal, or presence of a Hazardous Substance on, under or
about the Mortgaged Property whether known or unknown, fixed or
contingent, occurring prior to the termination of this Mortgage,
including, but not limited to: (i) all foreseeable consequential
damages; and (ii) the costs of any required or necessary repair,
cleanup or detoxification of the Mortgaged Property and the preparation
and implementation of any closure, remedial or other required plans.
This indemnity shall survive the release of the lien of this Mortgage,
or the extinguishment of the lien by foreclosure or action in lieu
thereof, and this covenant shall survive such release or
extinguishment.
(g) Remedial Work. In the event that any investigation, site
monitoring, containment, cleanup, removal, restoration or other
remedial work of any kind or nature (the "Remedial Work") is reasonably
necessary under any applicable local, state or federal law or
regulation, any judicial order, or by any governmental entity because
of, or in connection with, the current or future presence or release of
a Hazardous Substance in or into the air, soil, ground water, surface
water or soil vapor at, on, about, under or within the Mortgaged
Property (or any portion thereof), Mortgagor shall within such period
of time as may be required under any applicable law, regulation, order
or agreement, commence and thereafter diligently prosecute to
completion, all such Remedial Work. All Remedial Work shall be
performed by competent contractors. All costs and expenses of such
Remedial Work shall be paid by Mortgagor including, but not limited to,
Mortgagee's reasonable attorneys' fees and costs incurred in connection
with such Remedial Work. In the event Mortgagor shall fail to timely
commence, or cause to be commenced, or fail to diligently prosecute to
completion, such Remedial Work, Mortgagee may, but shall not be
required to, cause such Remedial Work to be performed and all costs and
expenses thereof, or incurred in connection therewith, shall become
part of the indebtedness secured hereby.
Section 5.2. Representations and Warranties Relating to Environmental
Matters. Mortgagor represents and warrants to Mortgagee that:
(a) No Existing Violation. Neither the Mortgaged Property nor
the Mortgagor is in violation of or subject to any existing, pending or
threatened investigation by any governmental authority under any
Environmental Law.
(b) No Permits Required. Mortgagor has not and is not
required by any Environmental Law to obtain any permits or license to
construct or use any improvements, fixtures or equipment forming a
part of the Mortgaged Property.
(c) Previous Uses. Mortgagor or its environmental advisors has
made diligent inquiry into previous uses and ownership of the Mortgaged
Property, and, based on such inquiry, has determined that no Hazardous
Substance has been disposed of or released on or to the Mortgaged
Property.
(d) Use by Mortgagor. Mortgagor's prior, current and intended
future use of the Mortgaged Property will not result in the disposal or
release of any Hazardous Substance on or to the Mortgaged Property
except as permitted by applicable law.
(e) Underground Storage. No underground storage tanks,
whether or not containing any Hazardous Substances, are located on or
under the Mortgaged Property.
Section 5.3. Environmental Risk Assessment. At any time that Mortgagee
reasonably believes that Hazardous Substances have been disposed of on, or have
been released to or from the Mortgaged Property, or at any time after a Default
hereunder, within thirty (30) days after a written request therefor by
Mortgagee, Mortgagor shall deliver to Mortgagee an environmental audit prepared
at Mortgagor's cost and expense by an environmental consultant acceptable to
Mortgagee, detailing the results of an environmental investigation of the
Mortgaged Property, including an inspection of and results of soil and ground
water samples.
ARTICLE VI
RESPECTING DEFAULTS AND REMEDIES OF MORTGAGEE
Section 6.1. Defaults. The term "Default," as used herein, shall
mean the occurrence of any one or more of the following events:
(a) Defaults in Loan Documents. A default or event of
default as such terms are defined in the Note or any of the other
Loan Documents.
(b) Payment. The failure of Mortgagor to pay the Secured
Indebtedness, or any part thereof, within five (5) days after the date
it becomes due in accordance with the terms of the Note or any other
Loan Documents or when accelerated pursuant to any power to accelerate
contained in this Mortgage or any of the other Loan Documents.
(c) Covenants. The failure of Mortgagor or any Obligated Party
to perform punctually and properly any covenant, agreement, obligation,
or condition contained in any of the Loan Documents to which such
Person is a party and the continuation of such failure for a period of
fifteen (15) days after written notice thereof from Mortgagee to
Mortgagor.
(d) Representations and Warranties. Any statement,
representation, or warranty in any of the Loan Documents is false,
misleading, or erroneous in any material respect.
(e) Condemnation or Eminent Domain. Condemnation or taking
by eminent domain of all or any material part (as determined by
Mortgagee in its sole discretion) of the Mortgaged Property.
(f) Voluntary Bankruptcy. Mortgagor or any Obligated Party
shall (i) apply for or consent to the appointment of a receiver,
trustee, custodian, intervenor or liquidator of such Person or of all
or a substantial part of such Person's assets, (ii) file a voluntary
petition in bankruptcy, admit in writing that such Person is unable to
pay such Person's debts as they become due or generally not pay such
Person's debts as they become due, (iii) make a general assignment for
the benefit of creditors, (iv) file a petition or answer seeking
reorganization or an arrangement with creditors or to take advantage of
any bankruptcy or insolvency laws, (v) file an answer admitting the
material allegations of, or consent to, or default in answering, a
petition filed against such Person in any bankruptcy, reorganization or
insolvency proceeding, or (vi) take any action for the purpose of
effecting any of the foregoing.
(g) Involuntary Bankruptcy. An involuntary petition or
complaint shall be filed against Mortgagor or any Obligated Party
seeking bankruptcy or reorganization of such Person or the appointment
of a receiver, custodian, trustee, intervenor or liquidator of such
Person, or of all or substantially all of such Person's assets, and
such petition or complaint shall not have been dismissed within
forty-five (45) days of the filing thereof; or an order, order for
relief, judgment or decree shall be entered by any court of competent
jurisdiction or other competent authority approving a petition or
complaint seeking reorganization of such Person or appointing a
receiver, custodian, trustee, intervenor or liquidator of such Person,
or of all or substantially all of such Person's assets.
(h) Payment of Judgments. The failure of Mortgagor or any
Obligated Party to pay any uninsured money judgment(s) against such
Person at least thirty (30) days after such judgment becomes final and
is no longer appealable.
(i) Attachment. The failure to have discharged within a period
of thirty (30) days after the commencement thereof any attachment,
sequestration, or similar proceedings against any of Mortgagor's or any
Obligated Party's assets.
(j) Priority of Liens. Mortgagee's Liens created hereby
should become unenforceable, or cease to be first priority Liens,
subject to Permitted Exceptions.
Section 6.2. Remedies. Upon the occurrence of a Default, Mortgagee may,
at Mortgagee's option, do any one or more of the following:
(a) Acceleration. Mortgagee may, without notice, demand,
presentment, notice of intention to accelerate or acceleration, protest
or notice of protest, all of which are hereby waived by Mortgagor and
all Obligated Parties, declare the entire unpaid balance of the Secured
Indebtedness immediately due and payable, and upon such declaration the
entire unpaid balance of the Secured Indebtedness shall be immediately
due and payable.
(b) Legal Proceedings. Mortgagee may proceed by suit or suits,
at law or in equity, to enforce the payment and performance of the
Secured Indebtedness in accordance with the terms hereof or of the
other Loan Documents, to foreclose or otherwise enforce the
assignments, liens, and security interests created or evidenced by the
other Loan Documents, or this Mortgage as against all, or any part of,
the Mortgaged Property, and to have all or any part of the Mortgaged
Property sold under the judgment or decree of a court of competent
jurisdiction.
(c) Appointment of Receiver. To the extent permitted by law,
Mortgagee shall be entitled to the appointment of a receiver or
receivers of the Mortgaged Property, or any part thereof, and of the
income, rents, issues, and profits thereof, and Mortgagor hereby
expressly consents to any such appointment.
(d) Possession. To the extent permitted by law, Mortgagee may
enter upon the Land, take possession of the Mortgaged Property and
remove the Personal Property or any part thereof, with or without
judicial process, and, in connection therewith, without any
responsibility or liability, including, without limitation, liability
for consequential damages of any kind on the part of Mortgagee, and
Mortgagee may take possession of any property located on or in the Real
Estate which is not a part of the Mortgaged Property and hold or store
such property at Mortgagor's expense.
(e) Performance of Covenants. If Mortgagor has failed to keep
or perform any covenant whatsoever contained in the Loan Documents or
in the Leases, Mortgagee may, but shall not be obligated to, perform or
attempt to perform said covenant, and any payment made or expense
incurred in the performance or attempted performance of any such
covenant shall be a part of the Secured Indebtedness, and Mortgagor
promises, upon demand, to pay to Mortgagee all sums so advanced by
Mortgagee, with interest at the default rate set forth in the Note from
the date when paid by Mortgagee. No such payment by Mortgagee shall
constitute a waiver of any Default. In addition to the liens and
security interests hereof, Mortgagee shall be subrogated to all Liens
securing the payment of any debt, claim, tax, or assessment which
Mortgagee may pay.
(f) Right to Make Repairs, Improvements. Should any part of
the Mortgaged Property come into the possession of Mortgagee, whether
before or after Default, Mortgagee may use, operate, and/or make
repairs, alterations, additions and improvements to the Mortgaged
Property for the purpose of preserving it or its value. Mortgagor
covenants to promptly reimburse and pay to Mortgagee, at the place
where the Note is payable, or at such other place as may be designated
by Mortgagee in writing, the amount of all reasonable expenses
(including the cost of any insurance, taxes, or other charges) incurred
by Mortgagee in connection with its custody, preservation, use or
operation of the Mortgaged Property, together with interest thereon
from the date incurred by Mortgagee at the then current rate of
interest applicable to the principal balance of the Note, and all such
expenses, cost, taxes, interest, and other charges shall be a part of
the Secured Indebtedness. It is agreed, however, that the risk of
accidental loss or damage to the Mortgaged Property is undertaken by
Mortgagor, and, except for Mortgagee's willful misconduct or gross
negligence, Mortgagee shall have no liability whatsoever for decline in
value of the Mortgaged Property, for failure to obtain or maintain
insurance, or for failure to determine whether any insurance ever in
force is adequate as to amount or as to the risks insured.
(g) Surrender of Insurance. Mortgagee may surrender the
insurance policies maintained pursuant to the terms hereof, or any part
thereof, and receive and apply the unearned premiums as a credit on the
Secured Indebtedness, and, in connection therewith, Mortgagor hereby
appoints Mortgagee (or any officer of Mortgagee), as the true and
lawful agent and attorney-in-fact for Mortgagor (with full powers of
substitution), which power of attorney shall be deemed to be a power
coupled with an interest and therefore irrevocable, to collect such
premiums.
(h) Sale of Personalty. After notification, if any, hereafter
provided in this Subsection, Mortgagee may sell, lease, or otherwise
dispose of (herein a "Sale") all or any part of the Personal Property
in conjunction with or separately from any sale of the Real Estate. The
Personal Property may be sold in its then condition, or following any
commercially reasonable preparation or processing, and each Sale may be
as a unit or in parcels, by public or private proceedings, and by way
of one or more contracts, and, at any Sale, it shall not be necessary
to exhibit the Personal Property being sold. In order to dispose of the
Personal Property Mortgagee may advertise the Personal Property for
sale under any and all trade names or service names attached to, fixed
upon or made part of, any of the Personal Property. The Sale of any
part of the Personal Property shall not exhaust Mortgagee's power of
Sale, but Sales may be made, from time to time, until the Secured
Indebtedness is paid and performed in full. Reasonable notification of
the time and place of any public Sale pursuant to this Subsection, or
reasonable notification of the time after which any private Sale is to
be made pursuant to this Subsection, shall be sent to Mortgagor and to
any other person entitled to notice under the Code; provided, that if
the Personal Property being sold is perishable, or threatens to decline
speedily in value, or is of a type customarily sold on a recognized
market, Mortgagee may sell, lease, or otherwise dispose of such
Personal Property without notification, advertisement or other notice
of any kind. It is agreed that notice sent or given not less than ten
(10) calendar days prior to the taking of the action to which the
notice relates, is reasonable notice for the purposes of this
Subsection.
(i) Assemble Personal Property. Mortgagee may require
Mortgagor to assemble the Personal Property, or any part thereof,
and make it available to Mortgagee at a place to be designated by
Mortgagee which is reasonably convenient to Mortgagee.
(j) Retention of Personalty. Mortgagee may at its option
retain the Personal Property in satisfaction of the Secured
Indebtedness whenever the circumstances are such that Mortgagee is
entitled to do so under the Code.
(k) Collection of Personal Property. Mortgagee may, in its own
name or the name of Mortgagor, notify any or all parties obligated on
any of the Personal Property to make all payments due or to become due
thereon directly to Mortgagee, whereupon the power and authority of
Mortgagor to collect the same in the ordinary course of its business
shall be deemed to be immediately revoked and terminated. With or
without such general notification, Mortgagee may take or bring in
Mortgagor's name or that of Mortgagee all steps, actions, suits or
proceedings deemed by Mortgagee necessary or desirable to effect
possession or collection of the Personal Property, including sums due
or paid thereon, may complete any contract or agreement of Mortgagor in
any way related to any of the Personal Property, may make allowances or
adjustments related to the Personal Property, may compromise any claims
related to the Personal Property, may issue credit in its own name or
the name of Mortgagor, may remove from Mortgagor's premises all
documents, instruments, records, files or other items relating to the
Personal Property, and Mortgagee may, without cost or expense to
Mortgagee, use Mortgagor's personnel, supplies and space to take
possession of, administer, collect and dispose of the Personal
Property. Regardless of any provision hereof, however, Mortgagee shall
never be liable for its failure to collect or for its failure to
exercise diligence in the collection, possession, or any transaction
concerning, all or part of the Personal Property or sums due or paid
thereon, nor shall it be under any obligation whatsoever to anyone by
virtue of this Mortgage, except to account for the funds that it shall
actually receive hereunder.
(l) Issuance of Receipts; Endorsements; Power of Attorney.
Issuance by Mortgagee of a receipt to any person, firm, corporation or
other entity obligated to pay any amounts to Mortgagor shall be a full
and complete release, discharge and acquittance to such person, firm,
corporation or other entity to the extent of any amount so paid to
Mortgagee. Mortgagee is hereby authorized and empowered on behalf of
Mortgagor to endorse the name of Mortgagor upon any check, draft,
instrument, receipt, instruction or other document or items, including,
but not limited to, all items evidencing payment upon any indebtedness
of any person, firm, corporation or other entity to Mortgagor coming
into Mortgagee's possession, and to receive and apply the proceeds
therefrom in accordance with the terms hereof. Mortgagee is hereby
granted an irrevocable power of attorney, which is coupled with an
interest, to execute all checks, drafts, receipts, instruments,
instructions or other documents, agreements or items on behalf of
Mortgagor, after Default, as shall be deemed by Mortgagee to be
necessary or advisable, in the sole discretion of Mortgagee, to protect
its security interest in the Personal Property or the repayment of the
Secured Indebtedness, and Mortgagee shall not incur any liability in
connection with or arising from its exercise of such power of attorney.
(m) Purchase of Personal Property By Mortgagee. Mortgagee may
buy the Personal Property, or any part thereof, at any public sale or
judicial sale and, if the Personal Property being sold is of a type
customarily sold in a recognized market or a type which is the subject
of widely distributed standard price quotations, Mortgagee may also buy
the Personal Property, or any part thereof, at any private sale.
(n) Foreclosure of Personal Property with Real Property.
Notwithstanding anything contained herein to the contrary, pursuant to
applicable provisions of Article 9.1 of the Code dealing with default
procedures when a security agreement covers both real and personal
property, Mortgagee may proceed under the Code as to all personal
property covered hereby or, at Mortgagee's election, Mortgagee may
proceed as to both the real and personal property covered hereby in
accordance with Mortgagee's rights and remedies in respect of real
property, in which case the provisions of the Code (and Subsection
6.2(h) hereof) shall not apply.
(o) Other Rights. Mortgagee shall have and may exercise
the rights of a secured party under the Code and any and all other
rights and remedies which Mortgagee may have at law or in equity.
(p) Collect Rents. Mortgagee may terminate the license granted
to Mortgagor in Section 7.1 hereof to collect the Rents, and, without
taking possession, in Mortgagee's own name, Mortgagee may demand,
collect, receive, sue for, attach and levy the Rents, and give proper
receipts, releases and acquittances therefor.
(q) Manage Leases. From and after the occurrence of a Default,
Mortgagee may make, modify, enforce, cancel or accept the surrender of
any Lease, remove or evict any Lessee, increase or reduce rents,
decorate, clean and make repairs, and otherwise do any act or incur any
costs or expenses that Mortgagee shall deem proper to protect the
security hereof, as fully and to the same extent as Mortgagor could do
if in possession of the Mortgaged Property.
Section 6.3. Effect of Foreclosure on Leases; Possession; Tenant at
Sufferance. Following foreclosure, any lease of the Mortgaged Property or a
portion thereof shall remain in effect, the purchaser thereby being subrogated
to the lessor's interest therein, unless the purchaser elects to treat such
lease as terminated by virtue of the sale under Mortgagee's prior lien. If the
assignments, liens, or security interests hereof shall be foreclosed by any
judicial or non-judicial action, then the purchaser at any such sale shall
receive, as an incident to his ownership, immediate possession of that portion
of the Mortgaged Property purchased, and if Mortgagor or Mortgagor's Successors
or Lessees shall hold possession of any of said portion of the Mortgaged
Property subsequent to such foreclosure, Mortgagor and Mortgagor's Successors or
Lessees in possession shall be considered as tenants at sufferance of the
purchaser at such foreclosure sale, and anyone occupying the Mortgaged Property
(or any part thereof) after demand made for possession thereof shall be guilty
of forcible detainer and shall be subject to eviction and removal, with or
without process of law, and all damages by reason thereof are hereby expressly
waived.
Section 6.4. Application of Proceeds. Except as may be otherwise
required by law, all amounts received by Mortgagee hereunder shall be applied as
follows: FIRST, to the payment of all expenses arising out of or in connection
with the Mortgaged Property, the foreclosure thereof, and the collection of the
Secured Indebtedness including, without limitation, the commissions, reasonable
fees and expenses of Mortgagee's attorneys, accountants, real estate brokers,
property managers and receivers; SECOND, to accrued or unpaid interest on the
Secured Indebtedness; THIRD, to principal on the matured portion of the Secured
Indebtedness; FOURTH, to prepayment of the unmatured portion, if any, of the
Secured Indebtedness applied to installments of principal in inverse order of
maturity; and FIFTH, the balance, if any, remaining after the full and final
payment and performance of the Secured Indebtedness, to Mortgagor or to such
other party entitled thereto.
ARTICLE VII
ASSIGNMENT OF LEASES AND RENTS
Section 7.1. Assignment. Mortgagor does hereby grant, transfer and
assign unto Mortgagee (i) the Leases; (ii) any and all guaranties of payment or
performance of the obligations of any Lessee; and (iii) the Rents; provided,
however, that Mortgagee hereby grants to Mortgagor a license to collect and
receive all Rents. Such license shall be revocable by notice from Mortgagee to
Mortgagor at any time after the occurrence and during the continuation of a
Default.
Section 7.2. No Liability on Mortgagee. Mortgagee shall not be liable
for any loss sustained by Mortgagor resulting from Mortgagee's failure to let
the Mortgaged Property, or any part thereof, after Default or from any other act
or omission of Mortgagee in managing the Mortgaged Property, or any part
thereof. Mortgagee shall not be obligated to perform or discharge, any
obligation, duty or liability under the Leases or under or by reason of this
Mortgage, and Mortgagor shall indemnify Mortgagee for, and hold Mortgagee
harmless from, any and all liability, loss or damage which may or might be
incurred under the Leases or under or by reason of this Mortgage, and from any
and all claims and demands whatsoever which may be asserted against Mortgagee by
reason of any alleged obligations or undertakings on its part to perform or
discharge any of the terms, covenants or agreements contained in the Leases.
Should Mortgagee incur any such liability under the Leases or under or by reason
of this Mortgage or in defense of any such claims or demands, the amount
thereof, including costs, expenses and reasonable attorneys' fees shall be
secured hereby and Mortgagor shall reimburse Mortgagee therefor immediately upon
demand, and upon the failure of Mortgagor to do so Mortgagee may, at its option,
declare the Secured Indebtedness immediately due and payable. It is further
understood that this Mortgage shall not operate to place responsibility for the
control, care, management or repair of the Mortgaged Property upon Mortgagee, or
for the carrying out of any of the terms and conditions of the Leases; nor shall
it operate to make Mortgagee responsible or liable for any waste committed on
the Mortgaged Property by the Lessees or any other parties, or for any dangerous
or defective condition of the Mortgaged Property, or for any negligence in the
management, upkeep, repair or control of the Mortgaged Property, resulting in
loss, injury or death to any Lessee, licensee, employee or stranger.
ARTICLE VIII
SECURITY AGREEMENT
Section 8.1. Grant of Security Interest. Mortgagor hereby transfers,
assigns, delivers and grants to Mortgagee a security interest in and right of
set-off against the Personal Property as security for payment of the Secured
Indebtedness.
Section 8.2. Assignment of Non-Code Personal Property. To the extent
that any of the Personal Property is not subject to the Code, Mortgagor hereby
assigns to Mortgagee all of Mortgagor's right, title, and interest in and to the
Personal Property to secure the Secured Indebtedness, together with the right of
set-off with regard to such Personal Property (or any part hereof). Release of
the lien of this Mortgage shall automatically terminate this assignment.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Release of this Mortgage. If the Secured Indebtedness is
paid and performed in full in accordance with the terms of the instruments
evidencing the Secured Indebtedness, and if Mortgagor shall well and truly
perform all of Mortgagor's covenants contained herein, then this conveyance
shall become null and void and be released at Mortgagor's request, and, to the
extent permitted by law, at Mortgagor's expense; otherwise, it shall remain in
full force and effect, provided that no release hereof shall impair Mortgagor's
warranties and indemnities contained herein.
Section 9.2. Successors. If Mortgagor, or any of Mortgagor's
Successors, conveys its interest in any of the Mortgaged Property to any other
party, then Mortgagee may, without notice to Mortgagor, or its successors and
assigns, deal with any owner of any part of the Mortgaged Property with
reference to this Mortgage and the Secured Indebtedness, either by way of
forbearance on the part of Mortgagee, or extension of time of payment of the
Secured Indebtedness, or release of all or any part of the Mortgaged Property,
or any other property securing payment of the Secured Indebtedness, without in
any way modifying or affecting Mortgagee's Rights and Liens hereunder or the
liability of Mortgagor, or any other party liable for payment of the Secured
Indebtedness, in whole or in part. This Subsection shall not be interpreted as
giving any rights to Mortgagor or Mortgagor's Successors to convey the Mortgaged
Property.
Section 9.3. Marshaling. Mortgagor hereby waives all Rights of
marshaling in the event of any foreclosure of the Liens hereby created.
Section 9.4. Reserve for Taxes, Insurance and Other Expenses. Mortgagor
shall pay to Mortgagee, together with and in addition to the monthly payments of
principal and interest payable under the terms of the Note secured hereby, on
the date set forth therein for the making of monthly payments, until the Note is
fully paid, a sum as estimated by Mortgagee, equal to all ground rentals,
insurance premiums, taxes and assessments next due against the Mortgaged
Property, less all sums already paid therefor, divided by the number of months
to elapse before two (2) months prior to the date when each such ground rental,
insurance premium, tax and assessment will become due. Such sums shall be held
by Mortgagee to pay said ground rentals, insurance premiums, taxes and
assessments. Such payments received by Mortgagee from Mortgagor are to be held
without any allowance of interest or dividend to Mortgagor and need not be kept
separate and apart from other funds of Mortgagee. Mortgagor shall initially fund
the reserve on the date of the execution of this Mortgage by depositing such
sums as are necessary, as reasonably determined by Mortgagee, so that the amount
of the initial funding, plus the additional monthly payments contemplated
herein, will be sufficient to pay all ground rentals, insurance premiums, taxes
and assessments sixty (60) days prior to their respective due dates. For
purposes of this Subsection, if taxes and assessments are payable in
installments with a six-month interval between due dates, then the due date for
such taxes and assessments is that date upon which each installment would first
become delinquent and a penalty and/or interest would be assessed if such
installment of taxes or assessments were not paid. After the occurrence and
during the continuation of a Default, Mortgagee may, in its sole discretion,
apply such sums to the payment of such expenses or to the Secured Indebtedness.
Any excess reserve shall, at the discretion of Mortgagee, be credited by
Mortgagee on subsequent payments to be made on the Secured Indebtedness by
Mortgagor, and any deficiency shall be paid by Mortgagor to Mortgagee on or
before the date when such ground rentals, premiums, taxes, and assessments,
shall have become due. Mortgagee may, from time to time, require an increase in
the monthly payments to be made under this Subsection, so that such payments in
the aggregate will be sufficient in amount for the payment of all ground
rentals, premiums, taxes and assessments sixty (60) days before they are due.
Section 9.5. Condemnation and Eminent Domain. Mortgagee shall be
entitled to receive any and all sums which may be awarded or become payable to
Mortgagor for the condemnation of, or taking upon exercise of the right of
Eminent Domain with respect to, any of the Mortgaged Property for public or
quasi-public use, or by virtue of private sale in lieu thereof, and any sums
which may be awarded or become payable to Mortgagor for damages caused by public
works or construction on or near the Mortgaged Property. Mortgagor shall give
immediate written notice to Mortgagee of any such proceedings affecting the
Mortgaged Property, and shall afford Mortgagee an opportunity to participate in
any proceeding or settlement of awards with respect thereto. All such sums are
hereby assigned to Mortgagee, and Mortgagor shall, upon request of Mortgagee,
make, execute, acknowledge, and deliver any and all additional assignments and
documents as may be necessary from time to time to enable Mortgagee to collect
and receipt for any such sums. Mortgagee shall not be, under any circumstances,
liable or responsible for failure to collect, or exercise diligence in the
collection of, any of such sums. Any sums so collected shall be applied by
Mortgagee, first, to the expenses, if any, of collection, in accordance with
Section 6.4 hereof. Notwithstanding the foregoing, if, after such proceedings or
private sale in lieu thereof, Mortgagee determines in its reasonable judgment
that the remainder of the Mortgaged Property can be restored in such a manner as
to preserve substantially the economic value thereof and Mortgagor is not then
otherwise in Default, upon request of Mortgagor such sums so held by Mortgagee
shall be made available for such restoration and disbursed by Mortgagee during
the course of such restoration under safeguards reasonably satisfactory to
Mortgagee. Any sums remaining after completion of restoration shall be applied
in accordance with Section 6.4. In the event of any partial taking of the
Mortgaged Property under this Subsection, Mortgagee may, at its sole discretion,
apply the funds received first to the expenses, if any, of collection; second,
to any unpaid interest which is due and delinquent and, third, to principal of
the Secured Indebtedness, in lieu of applying Section 6.4.
Section 9.6. Insurance Proceeds. Mortgagee is authorized and empowered
to collect and receive the proceeds of any and all insurance that may become
payable with respect to any of the Mortgaged Property. So long as no Default has
occurred and is continuing, such proceeds (together with any other amounts
deposited by Mortgagor with Mortgagee) are sufficient to rebuild and restore the
Improvements, such rebuilding and restoration can be completed within six months
and prior to the maturity of the Note, and the value of the Mortgaged Property
after restoration will be the same as or greater than the value of the Mortgaged
Property on the date hereof, Mortgagee shall make such proceeds available to
rebuild or restore the Improvements in accordance with disbursement procedures
established by Mortgagee or, if such conditions are not met, Mortgagee may apply
the same to the Secured Indebtedness in the order and manner set forth in
Section 6.4 hereof, whether then matured or to mature in the future, or at
Mortgagee's option, first to unpaid interest which is due and delinquent, and
second, to principal of the Secured Indebtedness, and prior to such application,
may deduct therefrom any expenses incurred in connection with the collection or
handling of such proceeds, it being understood that Mortgagee shall not be,
under any circumstances, liable, or responsible for failure to collect, or
exercise diligence in the collection of, any of such proceeds.
Section 9.7. Subrogation. It is understood and agreed that the proceeds
of the Note, to the extent that the same are utilized to pay or renew or extend
any indebtedness of Mortgagor, or any other indebtedness, or take up or release
any outstanding Liens against the Mortgaged Property, or any portion thereof,
have been advanced by Mortgagee at Mortgagor's request and at the request of the
obligors thereof and upon their representation that such amounts are due and
payable. Mortgagee shall be subrogated to any and all Rights and Liens owned or
claimed by any owner or mortgagee of said outstanding Rights and Liens, however
remote, regardless of whether said Rights and Liens are acquired by assignment
or are released by the beneficiary thereof upon payment.
Section 9.8. Illegality. If any provision of this Mortgage is held to
be illegal, invalid, or unenforceable under present or future laws effective
during the term of this Mortgage, the legality, validity, and enforceability of
the remaining provisions of this Mortgage shall not be affected thereby, and in
lieu of each such illegal, invalid or unenforceable provision there shall be
added automatically as a part of this Mortgage a provision as similar in terms
to such illegal, invalid, or unenforceable provision as may be possible and be
legal, valid, and enforceable. If the Rights and Liens created by this Mortgage
shall be invalid or unenforceable as to any part of the Secured Indebtedness,
then the unsecured portion of the Secured Indebtedness shall be completely paid
prior to the payment of the remaining and secured portion of the Secured
Indebtedness, and all payments made on the Secured Indebtedness shall be
considered to have been paid on and applied first to the complete payment of the
unsecured portion of the Secured Indebtedness.
Section 9.9. Maximum Interest Rate. Notwithstanding anything contained
in this Mortgage or in any of the Loan Documents to the contrary, Mortgagee
shall never be deemed to have contracted for or be entitled to receive, collect
or apply as interest on the Secured Indebtedness, any amount in excess of the
amount permitted and calculated at the highest lawful nonusurious rate, and, in
the event Mortgagee ever receives, collects or applies as interest any amount in
excess of the amount permitted and calculated at the highest lawful nonusurious
rate, such amount which would be excessive interest shall be applied to the
reduction of the unpaid principal balance of the Secured Indebtedness, and, if
the principal balance of the Secured Indebtedness is paid in full, any remaining
excess shall forthwith be paid to Mortgagor. In determining whether or not the
interest paid or payable under any specific contingency exceeds the amount of
interest permitted and calculated at the highest lawful nonusurious rate,
Mortgagor and Mortgagee shall, to the maximum extent permitted under applicable
law, (i) characterize any non-principal payment (other than payments which are
expressly designated as interest payments hereunder) as an expense, fee, or
premium, rather than as interest, (ii) exclude voluntary prepayments and the
effect thereof, and (iii) spread the total amount of interest throughout the
entire contemplated term of the Secured Indebtedness.
Section 9.10. Obligations Binding Upon Mortgagor's Successors. This
Mortgage is binding upon Mortgagor and Mortgagor's Successors, and shall inure
to the benefit of Mortgagee, and its successors and assigns, and the provisions
hereof shall likewise be covenants running with the land. The duties, covenants,
conditions, obligations, and warranties of Mortgagor in this Mortgage shall be
joint and several obligations of Mortgagor and Mortgagor's Successors.
Section 9.11. Counterparts. If this Mortgage has simultaneously
been executed in a number of identical counterparts, each of which, for all
purposes, shall be deemed an original.
Section 9.12. Exhibits. All exhibits attached hereto are by this
reference made a part hereof. The term "Mortgage" shall include all such
exhibits.
Section 9.13. Indemnity. Mortgagor hereby assumes all liability to any
third party for the Mortgaged Property and for any development, use, possession,
maintenance, and management of, and construction upon, the Mortgaged Property,
or any part thereof, and agrees to assume liability to any third party for, and
to indemnify and hold Mortgagee harmless from and against, any and all losses,
damages, claims, costs, penalties, causes of action, liabilities and expenses,
including court costs and attorneys' fees, howsoever arising (including, without
limitation, for injuries to or deaths of persons and damage to property), from
or incident to such ownership of the Mortgaged Property and development, use,
possession, maintenance, management, and construction.
Section 9.14. Vendor's Lien. If all or any portion of the proceeds of
the loan evidenced by the Note has been advanced for the purpose of paying the
purchase price for all or a part of the Mortgaged Property, then: (i) Mortgagee
shall have, and is hereby granted, a vendor's lien on the Mortgaged Property to
further secure the Secured Indebtedness; and (ii) Mortgagee shall be subrogated
to all rights, titles, interests, liens, and security interests owned or claimed
by the holder of any indebtedness which has been directly or indirectly
discharged or paid from the proceeds of the loan evidenced by the Note.
Section 9.15. Section References. All references to "Article,"
"Articles," "Section," "Sections," "Subsection," or "Subsections" contained
herein are, unless specifically indicated otherwise, references to articles,
sections, and subsections of this Mortgage.
Section 9.16. Singular; Plural. Whenever herein the singular number is
used, the same shall include the plural where appropriate, and words of any
gender shall include each other gender where appropriate.
Section 9.17. Headings. The captions, headings, and arrangements
used in this Mortgage are for convenience only and do not in any way affect,
limit, amplify, or modify the terms and provisions hereof.
Section 9.18. Notices. Whenever this Mortgage requires or permits any
consent, approval, notice (except for notices of a foreclosure which, if any
such notices are required by law, shall be in accordance with such law),
request, or demand from one party to another, the consent, approval, notice,
request, or demand shall be effective only if it is in writing, referring to
this Mortgage, signed by the party giving such notice, and delivered either
personally to such other party, or sent by nationally recognized overnight
courier delivery service or by certified mail of the United States Postal
Service, postage prepaid, return receipt requested, addressed to the other party
as follows (or to such other address or person as either party or person
entitled to notice may by written notice to the other party specify):
To Mortgagor: Hurco Companies, Inc.
One Technology Way
P. O. Box 68180
Indianapolis, Indiana 46268-0180
Attention: Roger J. Wolf
To Mortgagee: American Equity Investment Life Insurance Company
Mailing address: P. O. Box 71216
Des Moines, IA 50325
Attention: Mortgage Loan Department
Delivery address: 5000 Westown Parkway, Suite 440
West Des Moines, IA 50266
Attention: Mortgage Loan Department
Unless otherwise specified, notices shall be deemed given as follows: (i) if
delivered personally, when delivered; (ii) if delivered by nationally recognized
overnight courier delivery service, on the next business day following the day
such material is sent, and (iii) if by certified mail, three (3) days after such
material is deposited in the United States Mail.
Section 9.19. Governing Laws. The substantive laws of the State of
Indiana shall govern the validity, construction, enforcement, and interpretation
of this Mortgage, and the other Loan Documents, unless otherwise specified
therein.
Section 9.20. Time of Essence. Time is of the essence of this Mortgage.
Section 9.21. Fixture Filing. This Mortgage shall also constitute a
security agreement with respect to the Personal Property and a "fixture filing"
for purposes of the Code. Portions of the Personal Property are or may become
fixtures. Information concerning the security interests herein granted may be
obtained at the addresses stated in the preamble hereof.
Section 9.22. Financing Statement. Mortgagee shall have the right at
any time to file this Mortgage as a financing statement, or one or more Uniform
Commercial Code financing statements, but the failure to do so shall not impair
the validity and enforceability of this Mortgage in any respect whatsoever. A
carbon, photographic, or other reproduction of this Mortgage, or any financing
statement relating to this Mortgage, shall be sufficient as a financing
statement.
Section 9.23. Entire Agreements; Amendments. This Mortgage, the Note
and the other documents executed in connection herewith represent the final
agreement between the parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties. This Mortgage cannot be amended
except by agreement in writing by the party against whom enforcement of the
amendment is sought.
Section 9.24. Remedies Cumulative and Non-Waiver. No remedy or right of
the Mortgagee hereunder or under the Note, or any of the Loan Documents, or
otherwise, or available under applicable law, shall be exclusive of any other
right or remedy, but each such remedy or right shall be in addition to every
other remedy or right now or hereafter existing under any such document or under
applicable law. No delay in the exercise of, or omission to exercise, any remedy
or right accruing on any Default shall impair any such remedy or right or be
construed to be a waiver of any such Default or an acquiescence therein, nor
shall it affect any subsequent Default of the same or a different nature, nor
shall it extend or affect any grace period. Every such remedy or right may be
exercised concurrently or independently, when and as often as may be deemed
expedient by the Mortgagee. All obligations of the Mortgagor and all rights,
powers, and remedies of the Mortgagee expressed herein shall be in addition to,
and not in limitation of, those provided by law or in the Note or any of the
Loan Documents or any other written agreement or instrument relating to any of
the Secured Indebtedness or any security therefor.
Section 9.25. No Right of Setoff. No setoff or claim that Mortgagor may
now or in the future have against Mortgagee shall relieve or excuse Mortgagor
from paying the installments under the Note or performing any other obligation
secured hereby when the same is due.
Section 9.26. Right to Modify. Without affecting the obligation of
Mortgagor to pay and perform as herein required, without affecting the personal
liability of any person for payment of the Secured Indebtedness, and without
affecting the lien or priority of the lien hereof on the Mortgaged Property,
Mortgagee may, at its option, extend the time for payment of the Secured
Indebtedness or any portion thereof, reduce the payments thereon, release any
person liable on any portion of the Secured Indebtedness, accept a renewal note
or notes therefor, modify the terms of the Secured Indebtedness, release or
reconvey any part of the Mortgaged Property, take or release other or additional
security, consent to the making of any map or plat thereof, join in granting any
easement thereon, or join in any extension agreement or agreement subordinating
the lien hereof. Any such action by Mortgagee may be taken without Mortgagor's
consent and without the consent of any subordinate lienholder, and shall not
affect the priority of this Mortgage over any subordinate lien.
Section 9.27. Additional Security. The taking or acceptance of this
Mortgage by Mortgagee shall in no event be considered as a waiver of, or in any
way affecting or impairing any other security which Mortgagee may have or
acquire simultaneously herewith or may hereafter acquire for the payment of the
Secured Indebtedness, nor shall the taking at any time by Mortgagee of any such
additional security be construed as a waiver of, or in any way affecting or
impairing the security of this Mortgage; and Mortgagee may resort, for the
payment of the Secured Indebtedness, to any security therefor in such order and
manner as it may deem fit.
Section 9.28. Expenses of Recording. Mortgagor agrees to pay all
mortgage recording taxes, revenue stamps, charges and filing, registration and
recording fees imposed upon this Mortgage, the recording or filing thereof, or
upon the Mortgagee by reason of its ownership of this Mortgage, or its
enforcement thereof, or imposed upon any security instrument with respect to any
fixture or personal property owned by Mortgagor at the Mortgaged Property, or
imposed upon any instrument of further assurance.
MORTGAGOR:
HURCO COMPANIES, INC.,
an Indiana corporation
By:/S/ Roger J. Wolf
--------------------
Roger J. Wolf, Senior Vice President
and Chief Financial Officer
STATE OF INDIANA, COUNTY OF MARION, ss:
On this 29th day of April, 2002, before me, the undersigned, a Notary
Public in and for said county and state, personally appeared Roger J. Wolf, to
me personally known, who being by me duly sworn or affirmed did say that he is
the Senior Vice President and Chief Financial Officer of Hurco Companies, Inc.;
that said instrument was signed on behalf of said corporation by authority of
its Board of Directors; and that the said Roger J. Wolf, as such officer,
acknowledged the execution of said instrument to be the voluntary act and deed
of said corporation, by it and by said officer voluntarily executed.
/s/Sharon M. Korn
------------------------------------
Notary Public in and for said county
and state Printed Name:
Sharon M. Korn I am a
resident of Morgan County,
Indiana My commission expires:
11-24-2008
Exhibit A - Description of Land
Exhibit B - Permitted Exceptions to Title
Prepared by and when recorded, return to:
William L. Fairbank
Whitfield & Eddy, P.L.C.
317 Sixth Avenue, Suite 1200
Des Moines, IA 50309-4195
EXHIBIT "A"
Legal Description
A part of the Southwest Quarter and part of the Southeast Quarter of Section 25,
Township 17 North, Range 2 East in Marion County, Indiana, more particularly
described as follows:
Commencing at the Southeast corner of said Southwest Quarter of Section; thence
South 88 degrees 18 minutes 08 seconds West, along the South line of said
Quarter Section, 76.45 feet; thence North 01 degree 41 minutes 52 seconds West,
700.49 feet to the Point of Beginning; thence North 01 degree 29 minutes 20
seconds West, 506.20 feet; thence South 89 degrees 53 minutes 46 seconds East,
825.20 feet; thence South 00 degrees 06 minutes 14 seconds West, 477.67 feet, to
a point on a tangent curve to the right having a chord bearing and distance of
South 03 degrees 06 minutes 57 seconds West, 28.37 feet; thence along said curve
a distance of 28.39 feet; thence along a line non-tangent to said curve, North
89 degrees 53 minutes 46 seconds West, 809.64 feet to the Point of Beginning.
Also, non-exclusive easements for ingress and egress as set out in declarations
recorded November 15, 1988 as Instrument No. 88-116201 and September 27, 1990 as
Instrument Nos. 90-110745 and 90-110748 in the Office of the Recorder of Marion
County, Indiana.
EXHIBIT "B"
Permitted Exceptions
Those exceptions contained in Schedule B of the Policy of Title Insurance issued
by Chicago Title Insurance Company in favor of American Equity Investment Life
Insurance Company covering the Mortgaged Property.
The following loan schedules or exhibits are omitted from this filing but are
available as supplemental information to the Commission upon request.
o Assignment of Leases and Rents
o Affidavit of Borrower
o Environmental Compliance Indemnification Agreement
o UCC Financing Statement