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Exhibit 10.8
Illinois
MORTGAGE, SECURITY AGREEMENT,
FINANCING STATEMENT AND
ASSIGNMENT OF RENTS AND LEASES
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THIS MORTGAGE, SECURITY AGREEMENT, FINANCING STATEMENT AND ASSIGNMENT OF
RENTS AND LEASES ("Mortgage") entered into as of the 7th day of March, 1997 by
CERION TECHNOLOGIES INC., a Delaware corporation ("Mortgagor"), having its
principal place of business at 1401 Interstate Drive, Champaign, Illinois 61821
to THE CIT GROUP/BUSINESS CREDIT, INC., a New York corporation with an office
located at 10 South LaSalle Street, Chicago, Illinois 60603 ("Mortgagee").
Except as otherwise provided herein, all capitalized terms used but not defined
herein shall have the respective meanings given to them in the Loan Agreement
(as hereinafter defined).
WITNESSETH:
WHEREAS, pursuant to and upon satisfaction of the conditions set forth in
that certain Financing Agreement, dated March 7, 1997, between Mortgagor and
Mortgagee (the Financing Agreement and any and all renewals, extensions for any
period, increases or rearrangements thereof is referred to as the "Loan
Agreement"), Mortgagee has agreed to make certain Revolving Loans and Mortgagee
has also agreed to guaranty the Mortgagor's reimbursement obligations to the
Issuing Bank for its issuance of Letters of Credit and Mortgagee has further
agreed to extend certain other financial accommodations from time to time to
Mortgagor, all in an aggregate principal amount not to exceed Seven Million Five
Hundred Thousand and no/100 Dollars ($7,500,000.00); and
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WHEREAS, as a condition to Mortgagee's extension of certain financial
accommodations to Mortgagor including, without limitation, the extension of
credit pursuant to the Loan Agreement, Mortgagee has required that Mortgagor
enter into this Mortgage and grant to Mortgagee the liens and security interests
referred to herein to secure (i) payment of the principal amount, together with
interest thereon, of all present and future advances of money made by Mortgagee
to Mortgagor, including without limitation, the reborrowing of principal
previously repaid pursuant to the Loan Agreement, as well as all other
Obligations (all as defined and provided in the Loan Agreement) of Mortgagor to
Mortgagee; (ii) repayment of all reimbursement obligations due the Issuing Bank
from time to time, (iii) other payment and performance obligations related to
this Mortgage (the aforesaid Obligations of Mortgagor to Mortgagee, together
with the other payment and performance obligations being hereinafter referred to
collectively as the "Liabilities"); and
WHEREAS, the Liabilities secured hereby shall not exceed an aggregate
principal amount, at any one time outstanding of Twenty Five Million and no/100
Dollars ($25,000,000.00), PROVIDED, that the foregoing limitation shall apply
only to the lien upon the real property created by this Mortgage, and it shall
not in any manner limit, affect or impair any grant of a security interest or
other right in favor of the Mortgagee under the provisions of the Loan Agreement
or under any other security agreement at any time executed by Mortgagor;
NOW, THEREFORE, in consideration of the premises contained herein and to
secure payment of the Liabilities and in consideration of One Dollar ($1.00) in
hand paid, the receipt and sufficiency whereof are hereby acknowledged,
Mortgagor does hereby grant, remise, release, alien, convey, mortgage and
warrant to Mortgagee, its successors and assigns, the following described real
estate (the "Land") in Champaign County, Illinois, and does further grant a
security interest to Mortgagee in all Personal Property (as defined below) as
well as all Mortgaged Property (as defined below) as may be secured under the
Uniform Commercial Code (the "Code") in effect in the State of Illinois (the
"State"):
See Exhibit A attached hereto and by this reference made a part hereof for
the legal description of the Land
which Land, together with all right, title and interest, if any, which Mortgagor
may now have or hereafter acquire in and to all improvements, buildings and
structures now or hereafter located
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thereon of every nature whatsoever, is herein called the "Premises".
TOGETHER WITH all right, title and interest, if any, including any
after-acquired right, title and interest, and including any right of use or
occupancy, which Mortgagor may now have or hereafter acquire in and to (a) all
easements, rights of way, gores of land or any lands occupied by streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and
public places adjoining said Land, and any other interests in property
constituting appurtenances to the Premises, or which hereafter shall in any way
belong, relate or be appurtenant thereto, and (b) all hereditaments, gas, oil,
minerals (with the right to extract, sever and remove such gas, oil and
minerals), and easements, of every nature whatsoever, located in or on the
Premises and all other rights and privileges thereunto belonging or appertaining
and all extensions, additions, improvements, betterments, renewals,
substitutions and replacements to or of any of the rights and interests
described in subparagraphs (a) and (b) above (hereinafter the "Property
Rights").
TOGETHER WITH all right, title and interest, if any, including any
after-acquired right, title and interest, and including any right of use or
occupancy, which Mortgagor may now or hereafter acquire in and to all fixtures
and appurtenances of every nature whatsoever now or hereafter located in, on or
attached to, and used or intended to be used in connection with, or with the
operation of, the Premises, including, but not limited to (a) all apparatus,
machinery and equipment of Mortgagor and (b) all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to or of any
of the foregoing (the items described in the foregoing clauses (a) and (b) being
the "Fixtures"); as well as all personal property and equipment of every nature
whatsoever now or hereafter located in or on the Premises, including but not
limited to (c) accounts, contract rights, general intangibles, tax refunds,
chattel paper, instruments, notes, letters of credit, documents, documents of
title; (d) inventory; (e) equipment; (f) all of Mortgagor's deposit accounts
(general or special) with and credits and other claims against Mortgagee, or any
other financial institution with which Mortgagor maintains deposits; (g) all of
Mortgagor's now owned or hereafter acquired monies, and any and all other
property and interests in property of Mortgagor now or hereafter coming into the
actual possession, custody or control of Mortgagee or any agent or affiliate of
Mortgagee in any way or for any purpose (whether for safekeeping, deposit,
custody, pledge, transmission, collection or otherwise);
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(h) all insurance proceeds of or relating to any of the foregoing; (i) all
insurance proceeds relating to any key man life insurance policy covering the
life of any officer or director of Mortgagor; (j) all of Mortgagor's books and
records relating to any of the foregoing; and (k) all accessions and additions
to, substitutions for, and replacements, products and proceeds of any of the
foregoing clauses (c) through (j) (the items described in the foregoing clauses
(c) through (k) and any other personal property referred to in this paragraph
being the "Personal Property"). It is mutually agreed, intended and declared
that the Premises and all of the Property Rights and Fixtures owned by Mortgagor
(referred to collectively herein as the "Real Property") shall, so far as
permitted by law, be deemed to form a part and parcel of the Land and for the
purpose of this Mortgage to be real estate and covered by this Mortgage. It is
also agreed that if any of the property herein mortgaged is of a nature so that
a security interest therein can be perfected under the Code in effect in the
State, this instrument shall constitute a security agreement, fixture filing and
financing statement, and Mortgagor agrees to execute, deliver and file or refile
any financing statement, continuation statement, or other instruments Mortgagee
may reasonably require from time to time to perfect or renew such security
interest under the Code. To the extent permitted by law, (i) all of the Fixtures
are or are to become fixtures on the Land and (ii) this instrument, upon
recording or registration in the real estate records of the proper office, shall
constitute a "fixture-filing" within the meaning of Sections 9-313 and 9-402 of
the Code. Subject to the terms and conditions of the Loan Agreement, the
remedies for any violation of the covenants, terms and conditions of the
agreements herein contained shall be as prescribed herein or by general law, or,
as to that part of the security in which a security interest may be perfected
under the Code, by the specific statutory consequences now or hereafter enacted
and specified in the Code, all at Mortgagee's sole election.
TOGETHER WITH all the estate, right, title and interest of the Mortgagor in
and to (i) all judgments, insurance proceeds, awards of damages and settlements
resulting from condemnation proceedings or the taking of the Real Property, or
any part thereof, under the power of eminent domain or for any damage (whether
caused by such taking or otherwise) to the Real Property, or any part thereof,
or to any rights appurtenant thereto, and all proceeds of any sales or other
dispositions of the Real Property or any part thereof; and (except as otherwise
provided herein or in the Loan Agreement) the Mortgagee is hereby authorized to
collect and receive said awards and proceeds and to give proper receipts and
acquittances therefor, and to apply the
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same as provided in the Loan Agreement; and (ii) all contract rights, general
intangibles, actions and rights in action relating to the Real Property or the
Personal Property including, without limitation, all rights to insurance
proceeds and unearned premiums arising from or relating to damage to the Real
Property or the Personal Property; and (iii) all proceeds, products,
replacements, additions, substitutions, renewals and accessions of and to the
Real Property and the Personal Property. (The rights and interests described in
this paragraph shall hereinafter be called the "Intangibles".)
As additional security for the Liabilities secured hereby, Mortgagor (i)
does hereby pledge and assign to Mortgagee from and after the date hereof
(including any period of redemption), primarily and on a parity with the Real
Property, and not secondarily, all the rents, issues and profits of the Real
Property and all rents, issues, profits, revenues, royalties, bonuses, rights
and benefits due, payable or accruing (including all deposits of money as
advance rent, for security or as earnest money or as down payment for the
purchase of all or any part of the Real Property) (the "Rents") under any and
all present and future leases, contracts or other agreements relative to the
ownership or occupancy of all or any portion of the Real Property, and (ii)
except to the extent such a transfer or assignment is not permitted by the terms
thereof, does hereby transfer and assign to Mortgagee all such leases and
agreements (including all Mortgagor's rights under any contracts for the sale of
any portion of the Mortgaged Property and all revenues and royalties under any
oil, gas and mineral leases relating to the Real Property) (the "Leases").
Mortgagee hereby grants to Mortgagor the right to collect and use the Rents as
they become due and payable under the Leases, but not more than one (1) month in
advance thereof, unless an Event of Default shall have occurred PROVIDED that
the existence of such right shall not operate to subordinate this assignment to
any subsequent assignment, in whole or in part, by Mortgagor, and any such
subsequent assignment shall be subject to the rights of the Mortgagee under this
Mortgage. Mortgagor further agrees to execute and deliver such assignments of
leases or assignments of land sale contracts as Mortgagee may from time to time
request. In the event of an Event of Default (1) the Mortgagor agrees, upon
demand, to deliver to the Mortgagee all of the Leases with such additional
assignments thereof as the Mortgagee may request and agrees that the Mortgagee
may assume the management of the Real Property and collect the Rents, applying
the same upon the Liabilities in the manner provided in the Loan Agreement, and
(2) the Mortgagor hereby authorizes and directs all tenants, purchasers or
other persons occupying or otherwise acquiring any
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interest in any part of the Real Property to pay the Rents due under the Leases
to the Mortgagee upon request of the Mortgagee. Mortgagor hereby appoints
Mortgagee as its true and lawful attorney in fact to manage said property and
collect the Rents, with full power to bring suit for collection of the Rents and
possession of the Real Property, giving and granting unto said Mortgagee and
unto its agent or attorney full power and authority to do and perform all and
every act and thing whatsoever requisite and necessary to be done in the
protection of the security hereby conveyed; PROVIDED, HOWEVER, that (i) this
power of attorney and assignment of rents shall not be construed as an
obligation upon said Mortgagee to make or cause to be made any repairs that may
be needful or necessary and (ii) Mortgagee agrees that until such Event of
Default as aforesaid, Mortgagee shall permit Mortgagor to perform the
aforementioned management responsibilities. Upon Mortgagee's receipt of the
Rents, at Mortgagee's option, it may use the proceeds of the Rents to pay: (1)
reasonable charges for collection thereof, costs of necessary repairs and other
costs requisite and necessary during the continuance of this power of attorney
and assignment of rents, (2) general and special taxes, insurance premiums, and
(3) any or all of the Liabilities pursuant to the provisions of the Loan
Agreement. This power of attorney and assignment of rents shall be irrevocable
until this Mortgage shall have been satisfied and released of record and the
releasing of this Mortgage shall act as a revocation of this power of attorney
and assignment of rents. Mortgagee shall have and hereby expressly reserves the
right and privilege (but assumes no obligation) to demand, collect, sue for,
receive and recover the Rents, or any part thereof, now existing or hereafter
made, and apply the same in accordance with the provisions of the Loan
Agreement.
All of the property described above, and each item of property therein
described, not limited to but including the Land, the Premises, the Property
Rights, the Fixtures, the Personal Property, the Real Property, the Intangibles,
the Rents and the Leases, is herein referred to as the "Mortgaged Property."
Nothing herein contained shall be construed as constituting the Mortgagee a
mortgagee-in-possession in the absence of the taking of actual possession of the
Mortgaged Property by the Mortgagee. Nothing contained in this Mortgage shall be
construed as imposing on Mortgagee any of the obligations of the lessor under
any Lease of the Mortgaged Property in the absence of an explicit assumption
thereof by Mortgagee. In the exercise of the powers herein granted the
Mortgagee, except as provided in the Loan Agreement, no liability
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shall be asserted or enforced against the Mortgagee, all such liability being
expressly waived and released by Mortgagor.
TO HAVE AND TO HOLD the Mortgaged Property, properties, rights and
privileges hereby conveyed or assigned, or intended so to be, unto Mortgagee,
its beneficiaries, successors and assigns, forever for the uses and purposes
herein set forth. Mortgagor hereby releases and waives all rights under and by
virtue of the Homestead Exemption Laws, if any, of the State and Mortgagor
hereby covenants, represents and warrants that, at the time of the ensealing and
delivery of these presents, Mortgagor is well seised of the Mortgaged Property
in fee simple and with lawful authority to sell, assign, convey and mortgage the
Mortgaged Property, and that the title to the Mortgaged Property is free and
clear of all encumbrances, except as described on Exhibit B attached hereto and
made a part hereof, and that, except for the encumbrances set forth on Exhibit
B, Mortgagor will forever defend the same against all lawful claims.
The following provisions shall also constitute an integral part of this
Mortgage:
1. PAYMENT OF TAXES ON THE MORTGAGE. Without limiting any of the provisions
of the Loan Agreement, Mortgagor agrees that, if the United States or any
department, agency or bureau thereof or if the State or any of its subdivisions
having jurisdiction shall at any time require documentary stamps to be affixed
to this Mortgage or shall levy, assess, or charge any tax, assessment or
imposition upon this Mortgage or the credit or indebtedness secured hereby or
the interest of Mortgagee in the Premises or upon Mortgagee by reason of or as
holder of any of the foregoing then, Mortgagor shall pay for such documentary
stamps in the required amount and deliver them to Mortgagee or pay (or reimburse
Mortgagee for) such taxes, assessments or impositions. Mortgagor agrees to
exhibit to Mortgagee, at any time upon request, official receipts showing
payment of all taxes, assessments and charges which Mortgagor is required or
elects to pay under this paragraph. Mortgagor agrees to indemnify Mortgagee
against liability on account of such documentary stamps, taxes, assessments or
impositions, whether such liability arises before or after payment of the
Liabilities and regardless of whether this Mortgage shall have been released.
2. LEASES AFFECTING THE REAL PROPERTY. Mortgagor agrees faithfully to
perform all of its obligations under all present and future Leases at any time
assigned to Mortgagee as additional security, and to refrain from any action or
inaction which would result in termination of any such Leases or in the
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diminution of the value thereof or of the Rents due thereunder. All future
lessees under any Lease made after the date of recording of this Mortgage shall,
at Mortgagee's option and without any further documentation, attorn to Mortgagee
as lessor if for any reason Mortgagee becomes lessor thereunder, and, upon
demand, pay rent to Mortgagee, and Mortgagee shall not be responsible under such
Lease for matters arising prior to Mortgagee becoming lessor thereunder.
3. USE OF THE REAL PROPERTY. Mortgagor agrees that it shall not permit the
public to use the Real Property in any manner that might tend, in Mortgagee's
reasonable judgment, to impair Mortgagor's title to such property or any portion
thereof, or to make possible any claim or claims of easement by prescription or
of implied dedication to public use.
4. INDEMNIFICATION. Mortgagor shall not use or permit the use of any part
of the Real Property for an illegal purpose, including, without limitation, the
violation of any environmental laws, statutes, codes, regulations or practices.
Without limiting any indemnification Mortgagor has granted in the Loan
Agreement, Mortgagor agrees to indemnify and hold harmless Mortgagee from and
against any and all losses, suits, liabilities, fines, damages, judgments,
penalties, claims, charges, costs and expenses (including reasonable attorneys'
and paralegals' fees, court costs and disbursements) which may be imposed on,
incurred or paid by or asserted against the Real Property by reason or on
account of or in connection with (i) the construction, reconstruction or
alteration of the Real Property, (ii) any negligence or misconduct of Mortgagor,
any lessee of the Real Property, or any of their respective agents, contractors,
subcontractors, servants, employees, licensees or invitees, (iii) any accident,
injury, death or damage to any person or property occurring in, on or about the
Real Property or any street, drive, sidewalk, curb or passageway adjacent
thereto, or (iv) any other transaction arising out of or in any way connected
with the Mortgaged Property.
5. INSURANCE. Mortgagor shall, at its sole expense, obtain for, deliver to,
assign and maintain for the benefit of Mortgagee, until the Liabilities are paid
in full, insurance policies as specified in the Loan Agreement. In the event of
a casualty loss, the net insurance proceeds from such insurance policies shall
be paid and applied as specified in the Loan Agreement.
6. CONDEMNATION AWARDS. Mortgagor hereby assigns to Mortgagee, as
additional security, all awards of damage resulting
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from condemnation proceedings or the taking of or injury to the Real Property
for public use, and Mortgagor agrees that the proceeds of all such awards shall
be paid and applied as specified in the Loan Agreement.
7. REMEDIES. Subject to the provisions of the Loan Agreement, upon the
occurrence of an Event of Default under the terms of the Loan Agreement, in
addition to any rights and remedies provided for in the Loan Agreement, and to
the extent permitted by applicable law, the following provisions shall apply:
(a) MORTGAGEE'S POWER OF ENFORCEMENT. It shall be lawful for Mortgagee to
(i) immediately sell the Mortgaged Property either in whole or in separate
parcels, as prescribed by the State law, under power of sale, which power is
hereby granted to Mortgagee to the full extent permitted by the State law, and
thereupon, to make and execute to any purchaser(s) thereof deeds of conveyance
pursuant to applicable law or (ii) immediately foreclose this Mortgage by
judicial action. The court in which any proceeding is pending for the purpose of
foreclosure of this Mortgage may, at once or at any time thereafter, either
before or after sale, without notice and without requiring bond, and without
regard to the solvency or insolvency of any person liable for payment of the
Liabilities secured hereby, and without regard to the then value of the
Mortgaged Property or the occupancy thereof as a homestead, appoint a receiver
(the provisions for the appointment of a receiver and assignment of rents being
an express condition upon which the Loan hereby secured is made) for the benefit
of Mortgagee, with power to collect the Rents, due and to become due, during
such foreclosure suit and the full statutory period of redemption
notwithstanding any redemption. The receiver, out of the Rents when collected,
may pay costs incurred in the management and operation of the Real Property,
prior and subordinate liens, if any, and taxes, assessments, water and other
utilities and insurance, then due or thereafter accruing, and may make and pay
for any necessary repairs to the Real Property, and may pay all or any part of
the Liabilities or other sums secured hereby or any deficiency decree entered in
such foreclosure proceedings. Upon or at any time after the filing of a suit to
foreclose this Mortgage, the court in which such suit is filed shall have full
power to enter an order placing Mortgagee in possession of the Real Property
with the same power granted to a receiver pursuant to this subparagraph and with
all other rights and privileges of a mortgagee-in- possession under applicable
law.
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(b) MORTGAGEE'S RIGHT TO ENTER AND TAKE POSSESSION, OPERATE AND APPLY
INCOME. Mortgagee shall, at its option, have the right, acting through its
agents or attorneys, either with or without process of law, forcibly or
otherwise, to enter upon and take possession of the Real Property, expel and
remove any persons, goods, or chattels occupying or upon the same, to collect or
receive all the Rents, and to manage and control the same, and to lease the same
or any part thereof, from time to time, and, after deducting all reasonable
attorneys' fees and expenses, and all reasonable expenses incurred in the
protection, care, maintenance, management and operation of the Real Property,
distribute and apply the remaining net income in accordance with the terms of
the Loan Agreement or upon any deficiency decree entered in any foreclosure
proceedings.
8. APPLICATION OF THE RENTS OR PROCEEDS FROM FORECLOSURE OR SALE. In any
foreclosure of this Mortgage by judicial action, or any sale of the Mortgaged
Property by advertisement, in addition to any of the terms and provisions of the
Loan Agreement, there shall be allowed (and included in the decree for sale in
the event of a foreclosure by judicial action) to be paid out of the Rents or
the proceeds of such foreclosure proceeding and/or sale:
(a) LIABILITIES. All of the Liabilities and other sums secured hereby which
then remain unpaid; and
(b) OTHER ADVANCES. All other items advanced or paid by Mortgagee pursuant
to this Mortgage; and
(c) COSTS, FEES AND OTHER EXPENSES. All court costs, reasonable attorneys'
and paralegals' fees and expenses, appraiser's fees, advertising costs, filing
fees and transfer taxes, notice expenses, expenditures for documentary and
expert evidence, stenographer's charges, publication costs, and costs (which may
be estimated as to items to be expended after entry of the decree) of procuring
all abstracts of title, title searches and examinations, title guarantees, title
insurance policies, Torrens certificates and similar data with respect to title
which Mortgagee in the reasonable exercise of its judgment may deem necessary.
All such expenses shall become additional Liabilities secured hereby when paid
or incurred by Mortgagee in connection with any proceedings, including but not
limited to probate and bankruptcy proceedings, to which Mortgagee shall be a
party, either as plaintiff, claimant or defendant, by reason of this Mortgage or
any indebtedness hereby secured or in connection with the preparations for the
commencement of any suit for the fore closure, whether or not actually
commenced, or sale by
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advertisement. The proceeds of any sale (whether through a foreclosure
proceeding or Mortgagee's exercise of the power of sale) shall be distributed
and applied in accordance with the terms of the Loan Agreement.
9. CUMULATIVE REMEDIES; DELAY OR OMISSION NOT A WAIVER. Each remedy or
right of Mortgagee shall not be exclusive of but shall be in addition to every
other remedy or right now or hereafter existing at law or in equity. No delay in
the exercise or omission to exercise any remedy or right accruing on the
occurrence or existence of any Event of Default shall impair any such remedy or
right or be construed to be a waiver of any such Event of Default or
acquiescence therein, nor shall it affect any subsequent Event of Default of the
same or different nature. Every such remedy or right may be exercised
concurrently or independently and when and as often as may be deemed expedient
by Mortgagee.
10. MORTGAGEE'S REMEDIES AGAINST MULTIPLE PARCELS. If more than one
property, lot or parcel is covered by this Mortgage, and if this Mortgage is
foreclosed upon, or judgment is entered upon any Liabilities secured hereby, or
if Mortgagee exercises its power of sale, execution may be made upon or
Mortgagee may exercise its power of sale against any one or more of the
properties, lots or parcels and not upon the others, or upon all of such
properties or parcels, either together or separately, and at different times or
at the same time, and execution sales or sales by advertisement may likewise be
conducted separately or concurrently, in each case at Mortgagee's election.
11. NO MERGER. In the event of a foreclosure of this Mortgage or any other
mortgage or deed of trust securing the Liabilities, the Liabilities then due the
Mortgagee shall not be merged into any decree of foreclosure entered by the
court, and Mortgagee may concurrently or subsequently seek to foreclose one or
more mortgages or deeds of trust which also secure said Liabilities.
12. NOTICES. Except as otherwise provided herein, any notices, demands,
consents, requests, approvals, undertakings or other instruments required or
permitted to be given in connection with this Mortgage (and all copies of such
notices or other instruments as set forth below) shall be in writing, and shall
be deemed to have been validly served, given or delivered if hand-delivered, or
if sent by facsimile, or if sent by a nationally recognized overnight delivery
service, charges prepaid, or if mailed (effective three (3) business days
following deposit
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thereof at any main or branch United States Post Office) by United States mail,
postage prepaid, addressed to the party so notified as follows:
if to Mortgagor:
Cerion Technologies Inc.
1401 Interstate Drive
Champaign, Illinois 61821
Attn: Richard A. Clark, Vice
President-Finance and CFO
Telecopier No.: (217) 359-3702
with a copy to:
Erwin, Martinkus, Cole & Ansel
411 W. University Avenue
Champaign, Illinois 61820
Attn: Sam Erwin
Telecopier No.: (217) 351-4314
if to Mortgagee:
The CIT Group/Business Credit, Inc.
10 South LaSalle Street, 22nd Floor
Chicago, Illinois 60603
Attn: Regional Manager
Telecopier No.: (312) 443-0139
with a copy to:
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attn: James L. Marovitz
Telecopier No.: (312) 853-7036
Mortgagor or Mortgagee shall, from time to time, have the right to specify as
the proper addressee and/or address for the purposes of this Mortgage any other
party or address in the United States upon giving five (5) days' written notice
thereof.
13. EXTENSION OF PAYMENTS. Mortgagor agrees that, without affecting the
liability of any person for payment of the Liabilities secured hereby or
affecting the lien of this Mortgage upon the Mortgaged Property or any part
thereof (other than persons or property explicitly released as a result of the
exercise by Mortgagee of its rights and privileges hereunder),
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Mortgagee may at any time and from time to time, on request of the Mortgagor,
without notice to any person liable for payment of any Liabilities secured
hereby, but otherwise subject to the provisions of the Loan Agreement, extend
the time, or agree to alter or amend the terms of payment of such Liabilities.
Mortgagor further agrees that any part of the security herein described may be
released with or without consideration without affecting the remainder of the
Liabilities or the remainder of the security.
14. GOVERNING LAW. Mortgagor agrees that this Mortgage is to be construed,
governed and enforced in accordance with the laws of the State. Wherever
possible, each provision of this Mortgage shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Mortgage shall be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Mortgage.
15. SATISFACTION OF MORTGAGE. Upon full payment of all the Liabilities, at
the time and in the manner provided in the Loan Agreement, or upon satisfaction
of the conditions set forth in the Loan Agreement for release of the Mortgaged
Property from this Mortgage, this conveyance or lien shall be null and void and,
upon demand therefor following such payment or satisfaction of the conditions
set forth in the Loan Agreement for release of the Mortgaged Property, as the
case may be, a satisfaction of mortgage or reconveyance of the Mortgaged
Property shall promptly be provided by Mortgagee to Mortgagor.
16. SUCCESSORS AND ASSIGNS INCLUDED IN PARTIES. This Mortgage shall be
binding upon the Mortgagor and upon the successors, assigns and vendees of the
Mortgagor and shall inure to the benefit of the Mortgagee's successors and
assigns; all references herein to the Mortgagor and to the Mortgagee shall be
deemed to include their respective successors and assigns. Mortgagor's
successors and assigns shall include, without limitation, a receiver, trustee or
debtor in possession of or for the Mortgagor. Wherever used, the singular
number shall include the plural, the plural shall include the singular, and the
use of any gender shall be applicable to all genders.
17. WAIVER OF APPRAISEMENT, VALUATION, STAY, EXTENSION AND REDEMPTION LAWS.
Mortgagor agrees, to the full extent permitted by law, that at all times
following an Event of Default, neither Mortgagor nor anyone claiming through or
under
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it shall or will set up, claim or seek to take advantage of any appraisement,
valuation, stay, or extension laws now or hereafter in force, in order to
prevent or hinder the enforcement or foreclosure of this Mortgage or the
absolute sale of the Mortgaged Property or the final and absolute putting into
possession thereof, immediately after such sale, of the purchaser thereat; and
Mortgagor, for itself and all who may at any time claim through or under it,
hereby waives, to the full extent that it may lawfully so do, the benefit of all
such laws and any and all right to have the assets comprising the Mortgaged
Property marshaled upon any foreclosure of the lien hereof and agrees that
Mortgagee or any court having jurisdiction to foreclose such lien may sell the
Mortgaged Property in part or as an entirety. To the full extent permitted by
law, Mortgagor hereby waives any and all statutory or other rights of redemption
from sale under any order or decree of foreclosure of this Mortgage, on its own
behalf and on behalf of each and every person acquiring any interest in or title
to the Mortgaged Property subsequent to the date hereof.
18. INTERPRETATION WITH OTHER DOCUMENTS. Notwithstanding anything in this
Mortgage to the contrary, in the event of a conflict or inconsistency between
the Mortgage and the Loan Agreement, the provisions of the Loan Agreement shall
govern.
19. FUTURE ADVANCES. This Mortgage is given for the purpose of securing
loan advances which the Mortgagee may make to or for Mortgagor pursuant and
subject to the terms and provisions of the Loan Agreement. The parties hereto
intend that, in addition to any other debt or obligation secured hereby, this
Mortgage shall secure unpaid balances of loan advances made after this Mortgage
is delivered to the Recorder of Deeds, Champaign County, Illinois, whether made
pursuant to an obligation of Mortgagee or otherwise, provided that such advances
are within twenty (20) years from the date hereof and in such event, such
advances shall be secured to the same extent as if such future advances were
made on the date hereof, although there may be no advance made at the time of
execution hereof and although there may be no indebtedness outstanding at the
time any advance is made. Such loan advances may or may not be evidenced by
notes executed pursuant to the Loan Agreement.
20. INVALID PROVISIONS TO AFFECT NO OTHERS. In the event that any of the
covenants, agreements, terms or provisions contained in this Mortgage shall be
invalid, illegal or unenforceable in any respect, the validity of the remaining
covenants, agreements, terms or provisions contained herein or in the Loan
Agreement shall not be in any way affected, prejudiced
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or disturbed thereby. In the event that the application of any of the covenants,
agreements, terms or provisions of this Mortgage is held to be invalid, illegal
or unenforceable, those covenants, agreements, terms and provisions shall not be
in any way affected, prejudiced or disturbed when otherwise applied.
21. CHANGES. Neither this Mortgage nor any term hereof may be changed,
waived, discharged or terminated orally, or by any action or inaction, but only
by an instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought. To the extent permitted by
law, any agreement hereafter made by Mortgagor and Mortgagee relating to this
Mortgage shall be superior to the rights of the holder of any intervening lien
or encumbrance.
22. TIME OF ESSENCE. Time is of the essence with respect to the provisions
of this Mortgage.
23. NO STRICT CONSTRUCTION. The parties hereto have participated jointly in
the negotiation and drafting of this Mortgage. In the event an ambiguity or
question of intent or interpretation arises, this Mortgage shall be construed as
if drafted jointly by the parties hereto and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Mortgage.
IN WITNESS WHEREOF, this instrument is executed as of the day and year
first above written by the person or persons identified below on behalf of
Mortgagor (and said person or persons hereby represent that they possess full
power and authority to execute this instrument).
THE MORTGAGOR HEREBY DECLARES AND ACKNOWLEDGES THAT THE MORTGAGOR HAS
RECEIVED, WITHOUT CHARGE, A TRUE COPY OF THIS MORTGAGE.
MORTGAGOR:
CERION TECHNOLOGIES INC.
By /s/Richard A. Clark
----------------------
Richard A. Clark
Vice President-Finance
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16
STATE OF ILLINOIS )
) SS.
COUNTY OF Champaign )
I, the undersigned, a Notary Public in and for said County, in said State,
hereby certify that Richard A. Clark, whose name as Vice President-Finance of
Cerion Technologies Inc., a Delaware corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of the instrument, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and Official seal this 7th
day of March, 1997.
/s/ Cheri L. Baker
-----------------------------
Notary Public
(Seal)
My Commission Expires: ______
7-5-97
------------------------------
Notary Public in and for the
State of Illinois
-------------------------------------
OFFICIAL SEAL
Cheri L. Baker
Notary Public, State of Illinois
My Commission Expires 7/5/97
-------------------------------------
17
EXHIBIT A
LEGAL DESCRIPTION OF THE PREMISES
---------------------------------
PARCEL 1:
LOT 18 OF INTERSTATE RESEARCH PARK LOTS 17 AND 18 SUBDIVISION, AS PER PLAT
RECORDED IN PLAT BOOK "Z" AT PAGE 229 AS DOCUMENT 82 R 13954, SITUATED IN THE
CITY OF CHAMPAIGN, IN CHAMPAIGN COUNTY ILLINOIS.
PARCEL 2:
LOT 2 OF "REPLAT OF LOT 2 OF A REPLAT OF LOT 17 OF INTERSTATE RESEARCH PARK
LOTS NO. 17 AND 18 SUBDIVISION" AS PER PLAT RECORDED IN PLAT BOOK "BB" AT PAGE
93 AS DOCUMENT 90 R 21180, SITUATED IN THE CITY OF CHAMPAIGN COUNTY, ILLINOIS.
PARCEL 3:
LOT 2 OF CERION REPLAT INTERSTATE RESEARCH PARK AS PER PLAT RECORDED IN PLAT
BOOK "CC" AT PAGE 182 AS DOCUMENT 96 R 16342, IN CHAMPAIGN COUNTY, ILLINOIS;
FORMERLY KNOWN AS:
THE EAST 65 FEET OF LOT 1 OF "REPLAT OF LOT 2 OF A REPLAT OF LOT 17 OF
INTERSTATE RESEARCH PARK LOTS NO. 17 AND 18 SUBDIVISION" AS PER PLAT RECORDED
IN PLAT BOOK "BB" AT PAGE 93 AS DOCUMENT 90 R 21180, SITUATED IN THE CITY OF
CHAMPAIGN, IN CHAMPAIGN COUNTY, ILLINOIS.
18
EXHIBIT B
PERMITTED EXCEPTIONS TO TITLE
-----------------------------
Those title exceptions listed on title commitment 01-01-158,
dated March 7, 1997, issued by Chicago Title Insurance Company for the property
described on Exhibit A hereto.