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Exhibit 10.5
OPEN-END MORTGAGE
Maximum Principal Amount: $20,000,000.00
THIS OPEN-END MORTGAGE ("Mortgage") made as of the 29th day of
February, 2000, by DURAMED PHARMACEUTICALS, INC., a Delaware corporation, with a
mailing address of 5040 Duramed Drive, Cincinnati, Ohio 45213 (hereinafter
referred to as "Mortgagor," whether one or more), to THE PROVIDENT BANK, an Ohio
banking corporation, with a mailing address of One East Fourth Street,
Cincinnati, Ohio 45202 (hereinafter, together with its successors and assigns,
called "Mortgagee").
WHEREAS, Mortgagor has executed and delivered to Mortgagee (i) a
certain promissory note in the principal amount of Eight Million and 00/100
Dollars ($8,000,000.00) dated of even date herewith and a certain Promissory
Note in the principal amount of Twelve Million and 00/100 Dollars
($12,000,000.00) dated of even date herewith (such promissory notes together
with any renewals, extensions or modifications thereof which remain outstanding
while the Mortgage is in effect shall hereinafter be referred to, collectively,
as the "Note"), which Note evidences loans (collectively, the "Loan") from
Mortgagee to Mortgagor wherein Mortgagor promises to pay to Mortgagee so much
thereof as may now or hereafter be disbursed to or for the account of Mortgagor,
together with interest thereon as set forth in the Notes, with the final
installment being due on February 28, 2010.
WHEREAS, the Loan is made pursuant to the terms and in accordance with
or reliance upon certain other agreements and documents, which may include,
without limitation, an Assignment of Leases, Rents and Proceeds from Mortgagor
to Mortgagee dated of even date herewith, an Environmental Indemnity Agreement
and a Guaranty Agreement from Solvay America, Inc., a Delaware corporation
("Guarantor"), to Mortgagee dated of even date herewith, certificates, and
affidavits (hereinafter collectively referred to herein as "Loan Documents").
ARTICLE 1
The Grant
NOW THEREFORE, in consideration of the making of the Loan, Mortgagor
does hereby agree that the Mortgage shall secure the following: (a) the prompt
payment of the indebtedness evidenced by the Note, with interest thereon, and
any late or other charges imposed in accordance with the terms thereof; and (b)
the payment, performance and observance by Mortgagor of all of the covenants and
conditions contained in the Note, this Mortgage and the Loan Documents; (items
(a) and (b) shall hereinafter collectively be referred to as the "Indebtedness
Hereby Secured"), and in order to charge the properties, interests and rights
hereinafter described with such payment,
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performance and observance, and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Mortgagor does hereby
mortgage, warrant, grant, bargain, sell, assign, encumber, convey and grant a
security interest to Mortgagee forever in all of the estate, title, and interest
of Mortgagor in the fee simple, leasehold and easement estates in that certain
real property situated in the County of Hamilton and State of Ohio and more
particularly described on Exhibit A attached hereto and by reference made a part
hereof ("Real Property");
TOGETHER WITH all and singular the tenements, hereditaments, and
appurtenances thereto belonging, all present and future buildings, structures,
annexations, access rights, rights-of-way or use, servitudes, licenses, and
improvements thereon, all of the rights, privileges, licenses, easements and
appurtenances belonging to such Real Property, together with all of the estates
and rights in and to lands lying in streets, alleys and roads adjoining the said
Real Property (collectively, the "Improvements") and all Mortgagor's right,
title, interest, estate, claim and demand, either at law or in equity, in and to
all fixtures including, without limiting the generality of the foregoing, all
lighting, heating, cooling, ventilating, air conditioning, incinerating,
sprinkling, gas, plumbing, waste removal and refrigeration systems, engines,
furnaces, boilers, pumps, tanks, heaters, generators, motors, fire prevention
apparatus and all pipes, wires, fixtures, and apparatus forming a part of or
used in connection therewith; elevators and motors, refrigeration plants or
units, storm windows and doors, window and door screens, awnings and window and
door shades, all drapes and curtains and related hardware and mounting devices,
wall-to-wall carpeting; fixtures situated on the Real Property and used or
usable in operation thereof as well as all additions, improvements and
replacements thereto, and proceeds thereof; all water, sanitary and storm sewer
systems including all water mains, service laterals and mineral rights,
hydrants, valves and appurtenances, all sanitary sewer lines, including mains,
laterals, manholes and appurtenances, all paving for streets, roads, walkways or
entrance ways, all minerals, soil, flowers, shrubs, crops, trees, timber and
other emblements now or hereafter on the Real Property or under or above the
same or any part or parcel thereof, all proceeds, or sums payable in lieu of or
as compensation for the loss or damage to Improvements or to the Real Property
upon which the said property covered hereby is or may be located including
without limitation the buildings or improvements now or hereafter located
thereon, and all rights in and to all pertinent present and future fire, hazard,
business interruption, rental interruption and other insurance policies
maintained by Mortgagor on the Improvements and Real Property, all payment and
performance bonds received in connection with any construction or other matter
and all rights thereunder, all plans, specifications, drawings, studies,
surveys, appraisals and other similar work product, all contracts for design,
architectural, engineering or construction services and all rights and claims
thereunder; all other contract rights and agreements for the protection of
property or services to or in connection with, or otherwise benefiting the Real
Property including, without limitation, all management agreements and cable
television agreements; all permits, licenses, variances, approvals and/or
consents issued by any governmental entity, utility or other entity; all awards
made by any public body or created by any competent jurisdiction for the taking
or the degradation of value in any eminent domain proceedings, or purchase in
lieu thereof; all of Mortgagor's interest and rights as lessor or lessee in and
to all leases now or hereafter affecting the said Real Property or part thereof;
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all contracts for the sale of all or any portion of said Real Property,
excluding, however, those certain items of tangible personal property or trade
fixtures now or hereafter used or acquired by Mortgagor pursuant to its
Manufacturing Agreement with Warner-Lambert Company, a Delaware corporation
("Warner-Lambert"), to manufacture pharmaceutical products at the Real Property
or any personal property now or hereafter owned in whole or in part by
Warner-Lambert for use pursuant to such Manufacturing Agreement or any personal
property now or hereafter acquired in which Mortgagor has previously granted to
Bank of America Commercial Finance Corporation a security interest including,
without limitation, that certain property more particularly described in
Exhibits B, C and D attached hereto and incorporated herein (the "Excluded
Property") (the Real Property, Improvements and fixtures (other than the
Excluded Property) are hereinafter referred to as the "Premises").
Mortgagee is hereby subrogated to the rights of all mortgagees, lien
holders and owners paid off by the proceeds of the Loan secured hereby.
TO HAVE AND TO HOLD, the Premises unto the Mortgagee, its successors
and assigns forever for the use and purposes hereinafter set forth.
ARTICLE 2
Representations and Warranties
2.1 Organization and Existence. Mortgagor is a corporation, duly
organized and validly existing in good standing under the laws of the State of
Delaware and is qualified to do business and in good standing in each other
state where the nature of its business or the property owned by it make such
qualification necessary.
2.2 Execution, Delivery and Performance. The execution, delivery and
performance by Mortgagor of this Mortgage and each of the other Loan Documents
to which it is a party: (i) have been duly authorized by all requisite action,
(ii) do not and will not violate or conflict with any law or other governmental
requirement, or any of the agreements, instruments or documents which formed or
govern Mortgagor, and (iii) do not and will not breach or violate any of the
provisions of, and will not result in a default by Mortgagor under any other
agreement, instrument or document to which it is a party or by which it or its
properties are bound.
2.3 Notices and Approvals. Except as may have been given or obtained,
no notice to or consent or approval of any governmental body or authority or
other third party whatsoever (including, without limitation, any other creditor)
is required in connection with the execution, delivery or performance by
Mortgagor of this Mortgage.
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2.4 Enforceability. This Mortgage and such of the other Loan Documents
to which Mortgagor is a party are the respective legal, valid and binding
obligations of Mortgagor, enforceable against it in accordance with their
respective terms, except as enforceability may be limited by bankruptcy and
other similar laws affecting the rights of creditors generally or by general
principles of equity.
2.5 Financial Statements. Except as disclosed therein, all financial
statements of Mortgagor furnished to Mortgagee have been prepared in conformity
with generally accepted accounting principles, consistently applied, are true
and correct in all material respects, and fairly present the financial condition
of Mortgagor as at such dates and the results of its operations for the periods
then ended (subject, in the case of interim unaudited financial statements, to
normal year-end adjustments); and since the most recent date covered by such
financial statements, there has been no material adverse change in any such
financial condition or operations.
2.6 Litigation. No litigation, arbitration, administrative or
governmental proceedings are pending or, to the knowledge of Mortgagor,
threatened against Mortgagor, which would, if adversely determined, materially
and adversely affect the liens and security interests of Mortgagee hereunder or
under any of the other Loan Documents, the financial condition of Mortgagor or
the continued operations of Mortgagor.
2.7 Tax Returns. All federal, state and local tax returns, reports and
statements required to be filed by Mortgagor have been filed with the
appropriate governmental agencies and all taxes due and payable by Mortgagor
have been timely paid (except to the extent that any such failure to file or pay
will not materially and adversely affect either the liens and security interests
of Mortgagee hereunder or under any of the other Loan Documents, the financial
condition of Mortgagor, or the continued operations of Mortgagor.
2.8 Compliance with Laws. Mortgagor has complied with and is not in any
default under any federal, state or local law, regulation, rule order, the
failure to comply which would have a material adverse effect on the business of
Mortgagor.
2.9 Title. Mortgagor does hereby represent and warrant to Mortgagee
that it is lawfully seized of the Premises in fee simple and has full power to
convey the same and to execute this Mortgage; that the Premises are free, clear
and unencumbered of all easements, restrictions, and liens whatsoever, except
those easements, restrictions and liens set forth in the title evidence issued
to Mortgagee in connection herewith, if any ("Permitted Encumbrances"); that
Mortgagor does warrant and will defend the title to the Premises against the
claims and demands of all persons whomsoever except for the Permitted
Encumbrances; that Mortgagor will keep and observe all of the terms of this
Mortgage on Mortgagor's part to be performed; and that Mortgagor will make any
further assurances of title that Mortgagee may reasonably require.
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2.10 Mechanics Lien Matters. Mortgagor represents and warrants that,
except for Permitted Encumbrances, no Notice of Commencement (as identified in
Ohio Revised Code Section 1311.04) as to the Premises has been filed or will be
filed prior to the filing for record of this Mortgage and that Mortgagor shall
promptly provide Mortgagee with a copy of all Notices of Furnishing (as
identified in Ohio Revised Code Section 1311.05) received by Mortgagor.
Each of the foregoing representations and warranties: (i) has been and
will be relied upon as an inducement to Mortgagee to provide the Loan, and (ii)
shall survive the execution and delivery of this Mortgage.
ARTICLE 3
Covenants
Mortgagor further covenants and agrees with Mortgagee as follows:
3.1 Payments. To pay to Mortgagee, when due, the principal balance of
the Note with interest thereon and all other late charges and/or penalties, all
in accordance with the terms of the Note and to pay all other Indebtedness
Hereby Secured at the times and in the manner herein and therein provided.
3.2 Taxes and other Impositions. To pay, when due according to law, all
taxes, assessments and other charges which are now due or may hereafter be
imposed or assessed upon the Premises, or any part thereof, or that may be
imposed or assessed against the holder of this Mortgage (except when contested
in good faith and when appropriate reserves are established) and the Note by
reason of ownership thereof, by any authority, be it federal, state, county or
city including, but not limited to, charges imposed upon the Premises under any
applicable declaration of condominium. Upon the failure of Mortgagor promptly to
pay such taxes, assessments and other charges, Mortgagee shall have the option
to pay and discharge the same after written notice to Mortgagor, and any sum so
expended by Mortgagee shall at once become indebtedness owing from Mortgagor to
Mortgagee, shall be immediately due and payable by Mortgagor with interest
thereon to the extent legally enforceable at the rate of interest provided in
the Note in the event of default and shall together be added to the Indebtedness
Hereby Secured. Upon the request of Mortgagee, Mortgagor will promptly provide
Mortgagee with evidence of payment of the above taxes, assessments and other
charges imposed or assessed upon the Premises.
3.3 Insurance. For the term of this Mortgage, to obtain and keep in
full force and effect at the sole cost and expense of Mortgagor or cause to be
obtained and kept policies of insurance to: (a) maintain comprehensive general
public liability insurance covering the legal liability of Mortgagor against
claims for bodily injury, and/or property damage arising out of the use,
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maintenance and/or operation of the Premises and all areas appurtenant thereto
and/or the conduct of Mortgagor's business in such amounts as Mortgagee may
reasonably require but in no event less than One Million and 00/100 Dollars
($1,000,000.00) for personal injury or death to one person, One Million and
00/100 Dollars ($1,000,000.00) for personal injury or deaths in one accident and
One Million and 00/100 Dollars ($1,000,000.00) for property damage; (b) maintain
"broad form/special perils" insurance on any and all Improvements and Personal
Property located on the Premises against loss by fire or other hazards in an
amount not less than the greater of (i) actual cash, and (ii) full insurable
value of the Improvements located on the Premises as Mortgagee may reasonably
require, but in no event less than the principal balance of the Note; (c) in the
event any of the Premises is located within a hundred year flood plain or area
designated as subject to flood by the Federal Emergency Management Agency or
other government agency, or when required by any federal, state or local law,
statute, regulation or ordinance, maintain flood insurance in an amount
Mortgagee reasonably deems appropriate; (d) satisfy all applicable workers'
compensation insurance requirements; (e) maintain business interruption
insurance and/or loss of "rental value" insurance in such amounts, and with such
coverages, as may be reasonably satisfactory to Mortgagee, such insurance to be
provided at such time as Mortgagee may specify but in no event later than the
commencement of occupancy by any tenant; (f) during the course of any
construction or repair of the Improvements on the Premises, maintain builder's
completed value risk insurance against "all risks of physical loss," including
collapse and transit coverage, in nonreporting form, covering the total value of
work performed and equipment, supplies and materials furnished; and (g) obtain
and maintain any other insurance concerning the Premises or operation of
business thereon as Mortgagee may reasonably require including, but not limited
to, any applicable condominium insurance or PUD insurance.
All such policies of insurance shall be written by a company or
companies reasonably acceptable to Mortgagee; shall have attached thereto the
standard form of mortgagee clause; shall name Mortgagee and assigns as a named
insured, loss payee and as Mortgagee, without contribution; shall be delivered
to and held by Mortgagee or assigns; shall provide for thirty (30) days prior
written notice of cancellation or non-renewal to Mortgagee; shall have attached
thereto an agreed amount endorsement; shall include a provision stating that the
waiver of subrogation rights of the insured does not void the coverage; shall
contain endorsements that no act or negligence of the insured or any occupant
and no occupancy or use of the Premises for purposes more hazardous than
permitted by the terms of the policy, nor any breach of any warranty,
declaration or condition by the insured, will affect the validity or
enforceability of such insurance as against Mortgagee; shall contain the
agreement of the insurer waiving all rights of set off, counterclaim or
deductions against Mortgagor.
Mortgagor shall furnish or shall cause to be furnished to Mortgagee an
original policy or certificate of all required policies of insurance along with
proof of premiums paid for the current policy year and each subsequent year for
the term of this Mortgage. This Mortgage shall operate as an assignment to
Mortgagee of said policies of insurance, whether delivered or not. At
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the option of the Mortgagee, if insurance proceeds are not paid within ninety
(90) days of the casualty or if Mortgagor cannot reinstate its business
operations within a reasonable period of time after the occurrence of a
casualty, or if there is a default, the proceeds of loss under any policy of
insurance, whether endorsed payable to the Mortgagee or not, may be applied in
payment of the Note or any other sum secured by this Mortgage, whether or not
such sums are then due, or to the restoration or replacement of any buildings on
the Premises without in any way affecting the lien of this Mortgage or the
obligation of the Mortgagor or any other person for payment of the Indebtedness
Hereby Secured.
If the Premises are sold following foreclosure or if Mortgagee acquires
title to the Premises, Mortgagee shall have all the right, title and interest of
the Mortgagor in and to any insurance policies and unearned premiums thereon and
in and to the proceeds resulting from any damage to the Premises prior to such
sale or acquisition.
Upon the failure of Mortgagor to provide or cause to be provided the
aforesaid insurance, Mortgagee shall have the option to procure and maintain
such insurance without notice to Mortgagor. Any sum so expended by Mortgagee
shall at once become indebtedness owing from Mortgagor to Mortgagee and shall
immediately become due and payable by Mortgagor with interest thereon to the
extent legally enforceable, at the rate of interest provided in the Note in the
event of a default, and shall together be added to the Indebtedness Hereby
Secured.
3.4 Condition of Property; Compliance with Law; Waste. To keep the
Premises in good condition and repair and to make all structural and
nonstructural repairs and maintenance necessary and to cause all repairs and
maintenance to be done in a good and workmanlike manner; to comply in all
material respects with all statutes, laws, ordinances and governmental rules,
regulations and orders which are applicable to the Premises; (except for items
having a value of less than Ten Thousand and 00/100 Dollars ($10,000.00)) not to
commit or permit waste on the Premises or remove or permit the removal of any
building, improvement, or fixture from the Premises without prior written
consent of the Mortgagee or unless replaced with an item of greater or equal
value; and not to perform or permit any act which may in any way materially
impair the value of the Premises.
3.5 No Further Encumbrances; No Disposition. Except for the Permitted
Encumbrances or a merger or consolidation or sale of substantially all the
assets of Mortgagor permitted under Section 3.15 hereof, not to make, create, or
suffer to be made or created any sale, transfer, conveyance, assignment of the
Premises, or any part thereof, or any interest therein or any contract or
agreement to do any of the same without Mortgagee's prior written consent, which
consent may be withheld in Mortgagee's sole and absolute discretion. A sale,
transfer, conveyance or assignment means the conveyance by the Mortgagor of any
legal or equitable right, title or interest in the Premises, or any part
thereof, whether such conveyance is voluntary or involuntary, by outright sale,
deed, installment sale contract, land contract, lease option contract, or any
other method of transferring any interest in real property, except for the lease
from Mortgagor to Warner-Lambert and
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a license back from Warner-Lambert to Mortgagor. Any encumbrance means a lien,
mortgage or any other encumbrance subordinate to Mortgagee's Mortgage. Further,
in the event of default under any of the provisions of this Section 3.5,
Mortgagee may, without notice to Mortgagor, deal with such successor or
successors in interest with reference to this Mortgage and the Note and in the
same manner as with the Mortgagor and may forbear to sue or may extend time for
payment of the Note without discharging or in anyway affecting the liability of
the Mortgagor hereunder or under the Note.
3.6 Condemnation. To promptly notify Mortgagee of any action or
proceeding relating to any condemnation or other taking, whether direct or
indirect of the Premises, or part thereof, and Mortgagor shall appear in and
prosecute any such action or proceedings unless otherwise directed by Mortgagee
in writing. Mortgagor authorizes Mortgagee at Mortgagee's option, as attorney in
fact for Mortgagor, (which authorization shall be irrevocable) to commence,
appear in and prosecute, in Mortgagee's or Mortgagor's name, any action or
proceeding relating to any condemnation or other taking of the Premises, whether
direct or indirect and to settle or compromise any claim in connection with such
condemnation or other taking. The proceeds of any award, payment or claim for
damages, direct or consequential, in connection with any condemnation or other
taking, whether direct or indirect, of the Premises or any part thereof, or for
conveyance in lieu of condemnation, are hereby assigned to and shall be paid to
Mortgagee; and all condemnation money so received shall be forthwith applied by
Mortgagee, at its option in payment of the Note, or any other sum secured by
this Mortgage whether or not such sums are then due, or to the restoration or
replacement of any part of the Premises without in any way affecting the lien of
this Mortgage or the obligation of the Mortgagor or any other person for payment
of Indebtedness Hereby Secured; provided however that any excess over the
balance due under the Note and any other indebtedness secured by this Mortgage
shall be delivered to Mortgagor.
3.7 Books and Records; Financial Information. With respect to the
Premises and the operation thereof, Mortgagor will keep or cause to be kept
proper books of record in accordance with generally accepted accounting
principals consistently applied. Mortgagee shall have the right to inspect the
books and records of the operation of the Premises and make copies thereof at
all reasonable times and upon reasonable notice to Mortgagor. Mortgagor shall
furnish to Mortgagee during the term of this Mortgage all of the following: (i)
within ninety (90) days after the end of each fiscal year of Mortgagor, a copy
of the annual audited financial statements of Mortgagor including, in reasonable
detail, a balance sheet as of the close of such fiscal year, and a statement of
profit and loss for such fiscal year; (ii) within forty-five (45) days after the
close of each fiscal quarter of Mortgagor, a copy of the interim financial
statements of Mortgagor for such fiscal quarter (including, in reasonable
detail, both a balance sheet as of the close of such fiscal period, and a
statement of profit and loss for such fiscal period); and (iii) such other
information as Mortgagee may from time to time request. All such financial
statements shall be certified as correct by the party who has prepared such
information, and, in the case of internally prepared statements, certified as
correct by the chief financial officer of Mortgagor. In addition, Mortgagor will
furnish to Mortgagee copies
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of federal income tax returns as Mortgagee may reasonably request, certified by
Mortgagor in such form as may be reasonably acceptable to Mortgagee.
3.8 Liability For All Loan Administration and Enforcement Expenses.
Mortgagor shall pay all sums, including costs and reasonable attorney fees for
Mortgagee's outside counsel at such counsel's standard hourly rates for time
actually incurred in the making of the Loan and the administration thereof
including title examination and title insurance premiums and expenses, appraisal
fees, survey fees, inspection fees incurred by Mortgagee to establish or
preserve the lien of this Mortgage or its priority, or in connection with any
suit to enforce this Mortgage to recover the Indebtedness Hereby Secured, or to
protect the security of this Mortgage. All such sums shall be immediately due
and payable, shall bear interest at the highest rate of interest provided in the
Note in the event of default, and shall, together with such interest, be added
to the Indebtedness Hereby Secured.
3.9 Application of Funds. Unless applicable law provides otherwise, all
payments received by Mortgagee from Mortgagor under the Note or this Mortgage
shall be applied by Mortgagee in the following order of priority:
(a) Amounts advanced by Mortgagee in accordance with the terms of
this Mortgage, the Note or the Loan Documents, together with interest thereon;
(b) All late charges, penalties and/or prepayment penalties due
Mortgagee from Mortgagor pursuant to the provisions of the Note, Mortgage and
Loan Documents;
(c) Interest payable on the Note;
(d) Principal balance of the Note; and
(e) All other Indebtedness Hereby Secured.
3.10 Environmental Conditions. Mortgagor represents and warrants to
Mortgagee (a) that, except as disclosed in environmental reports now or
previously provided to Mortgagee, Mortgagor has no knowledge or information
which would put a reasonable person on notice or cause such person to make
inquiry concerning the likelihood or presence of any hazardous waste condition
or any factor contributing to a risk to the environment located on or emanating
from the Premises; (b) that no environmental enforcement action(s) against or
concerning the Premises are pending or threatened and Mortgagor will notify
Mortgagee if any such action is commenced; (c) that Mortgagor will maintain and
operate the Premises during the term of the Mortgage in material compliance with
all applicable environmental laws of the state where the Premises are located
and of the United States of America; (d) that Mortgagor will remedy any
contamination that may be discovered on the Premises and which is required by
law to be remedied; and (e) the Mortgagor will indemnify and
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hold Mortgagee harmless from and against all losses or damages arising from
hazardous waste conditions or risks to the environment which will result in
claims against or liability of Mortgagee as holder of this Mortgage or
subsequent owner of the Premises that are not covered by Mortgagee or its agents
or employees or independent contractors retained by or on behalf of Mortgagee.
3.11 Indemnification of Mortgagee. To indemnify Mortgagee for and hold
Mortgagee harmless from and against any loss suffered or any liability, cost or
expense including, without limitation, reasonable attorneys' fees, incurred by
Mortgagee on account of any damage to the person or property of the parties
hereto or of any third parties by reason of or in connection with the use,
operation, maintenance, repair or management of the Premises, whether or not
such damage is partly due to the negligence of Mortgagee, or its employees or
agents, unless such damage was caused solely by the act or acts of Mortgagee or
its employees or agents while on the Premises. Mortgagor shall undertake, at
their sole expense and through counsel satisfactory to Mortgagee, the defense of
Mortgagee in any lawsuit commenced as the result, or alleged to be the result,
of injury or damage occurring by reason of or in connection with the use,
operation, maintenance, repair or management of the Premises.
3.12 Taxes. Mortgagor will pay when due all taxes, assessments and
other governmental charges, howsoever designated, and all other liabilities and
obligations, except to the extent that any such failure to pay will not
materially and adversely affect either the liens and security interests of
Mortgagee hereunder or under any of the other Loan Documents, the financial
condition of Mortgagor or the continued operations of Mortgagor.
3.13 Compliance With Laws and Agreements. Mortgagor will not violate
any law, regulation or other governmental requirement, any judgment or order of
any court or governmental agency or authority, or any agreement, instrument or
document to which it is a party or by which it is bound, if any such violation
will materially and adversely affect either the liens and security interests of
Mortgagee hereunder or under any of the other Loan Documents, the financial
condition of Mortgagor, or the continued operations of Mortgagor.
3.14 Notification of Default. Mortgagor shall provide Mortgagee with
prompt written notification of: (i) any Event of Default or any event which,
with the giving of notice, passage of time, or both, would constitute such an
Event of Default; (ii) any materially adverse change in the business, financial
condition or operations of Mortgagor; (iii) any information which indicates that
any financial statements of Mortgagor fail, in any material respect, to present
fairly the financial condition and results of operations purported to be
presented in such statements; and (iv) any change in Mortgagor's outside
accountants. Each notification by Mortgagor pursuant hereto shall specify the
event or information causing such notification, and, to the extent applicable,
shall specify the steps being taken to rectify or remedy such event or
information.
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3.15 Continuity. Except upon the prior written consent of Mortgagee,
which consent will not be unreasonably withheld: (a) Mortgagor shall be a party
to any merger or consolidation with, or purchase or otherwise acquire all or
substantially all of the assets of, or any material stock, partnership, joint
venture or other equity interest in, any person or entity, or sell, transfer or
lease all or any substantial part of its assets, if any such action would result
in either: (i) a material change in the principal business of Mortgagor, or (ii)
a material adverse change in the financial condition or operations of Mortgagor;
and (b) Mortgagor shall preserve its existence and good standing in the
jurisdiction(s) of establishment and operation. In any event, regardless of the
consent of Mortgagee, Mortgagor may be a party to any merger or consolidation,
or purchase or otherwise acquire all or substantially all of the assets of, or
any material stock, partnership, joint venture or other equity interest in, any
person or entity, or sell, transfer or lease all or any substantial part of its
assets if (A) the net worth of Mortgagor immediately following any such
transaction shall equal or exceed the net worth of Mortgagor immediately prior
to such transaction, and (B) the debt to equity ratio of Mortgagor immediately
following any such transaction shall be the same or better than that immediately
prior to such transaction.
ARTICLE 4
Events of Default
Each of the following shall be deemed to be an "Event of Default":
4.1 Default in the payment of principal, interest or any other amounts
due under the Note within ten (10) days after notice from Mortgagee that such
payment is past due;
4.2 Default in the payment of any other Indebtedness Hereby Secured
within five (5) days after notice from Mortgagee that such payment is past due;
4.3 The failure to obtain and keep in force at all times all insurance
on the Premises and contents thereof and other insurance coverages in accordance
with the terms of this Mortgage and such failure is not fully cured within ten
(10) days after Mortgagee has given written notice thereof to Mortgagor;
4.4 An encumbrance on or sale of the Premises, or any part thereof, in
violation of Section 3.5 herein;
4.5 The filing of any lien unless contested in good faith and with
appropriate reserves established or charge against the Premises or any part
thereof which is not removed or bonded to the satisfaction of Mortgagee within a
period of thirty (30) days thereafter;
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4.6 The failure to observe or perform any one or more of the other
terms, covenants or other obligations on the part of Mortgagor set forth in the
Note, this Mortgage, or the Loan Documents and such default is not fully cured
within thirty (30) days after Mortgagee has given written notice thereof to
Mortgagor; provided, however, that if such default is curable, and if and so
long as Mortgagor is proceeding with due diligence to cure the default, such
period will be extended to whatever reasonable period is required to permit the
Mortgagor to cure the default; provided that such additional curing period does
not, in Mortgagee's sole opinion, jeopardize its vital interest in the Premises;
4.7 The abandonment by Mortgagor of all or a part of the Premises;
4.8 In the case where Mortgagor is a corporation, partnership or trust
entity, the dissolution or cessation of existence as a legal entity of
Mortgagor;
4.9 Any certification, representation or warranty of Mortgagor under
this Mortgage or any of the Loan Documents or any other information provided to
Mortgagee by Mortgagor or its representatives in connection with the Premises is
determined to have been untrue and/or misleading in any material effect when
made;
4.10 Upon the filing of any bankruptcy proceeding by Mortgagor or upon
the filing of any bankruptcy proceeding against Mortgagor which is not dismissed
within sixty (60) days; any assignment by the Mortgagor of any of its property
for the benefit of creditors, or the placing of any of Mortgagor's property in
receivership, trusteeship or conservatorship with or without action or suit in
any court;
4.11 The death of any individual, or dissolution of any corporate
partnership or limited liability company, borrower, co-maker or guarantor;
4.12 The insolvency or bankruptcy of a guarantor; and
4.13 The occurrence of any Event of Default under any of the other Loan
Documents.
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ARTICLE 5
Remedies
5.1 Mortgagee's Remedies. Upon the occurrence of an Event of Default,
Mortgagee shall have the right to exercise all rights and remedies provided by
law or in equity to which Mortgagee is entitled including, without limitation,
(a) the right to proceed to protect and enforce its rights by any action at law,
in equity or other appropriate proceeding, whether for the specific performance
of any agreement contained herein or for an injunction against a violation of
any of the terms, conditions, or provisions hereof or in the aid of the exercise
of any power granted hereby or by law; (b) the right to declare the entire
amount of the Note and all interest thereon, or, at its option, any part of the
foregoing, to be immediately due and payable without further demand or notice;
(c) the right to, at any time or from time to time, proceed at law or in equity
or otherwise to foreclose the lien of this Mortgage as against all or any part
of the Premises; (d) upon the filing of a suit or other commencement of judicial
proceeding to enforce the rights of the Mortgagee under this Mortgage, Mortgagee
shall be entitled, as a matter of right, to the appointment of a receiver or
receivers of the Premises and to receive all receipts therefrom pending such
proceedings, with such power as the court making such appointment shall confer;
and (e) the right to demand that Mortgagor surrenders the possession of the
Premises subject to the rights of any lessee, to take possession of all or any
part of the Premises together with all books, papers and accounts of Mortgagor
pertaining thereto and to operate and manage the same and from time to time to
make all needful repairs and improvements as Mortgagee may deem reasonable; and
to lease the Premises or any part thereof in the name of and for the account of
the Mortgagor and to collect and receive and sequester the rents, revenues and
other income after deducting all proper costs and expenses of so taking, holding
and managing the same, including reasonable compensation to Mortgagee.
5.2 Rights and Remedies Cumulative; No Waiver or Release of Obligation.
The rights and remedies of the Mortgagee as provided in this Mortgage and in the
Note, and in the warranties contained herein and therein shall be cumulative and
concurrent, may be pursued separately, successively or together against
Mortgagor or against the Premises, or both, in the sole discretion of Mortgagee,
and may be exercised as often as occasion therefor shall arise.
Any failure by Mortgagee to insist upon strict performance by Mortgagor
of any of the terms and provisions of this Mortgage or of the Note shall not be
deemed a waiver of any of the terms or provisions of this Mortgage or the Note.
No delay or omission to exercise any right or power accruing upon any Event of
Default shall impair any right or power or shall be construed to be a waiver of
any such Event of Default or acquiescence therein; every such right and power
may be exercised from time to time and as often as may be deemed expedient. No
waiver of any default or Event of Default hereunder by the Mortgagee shall
extend to or shall affect any subsequent Event of Default or shall impair any
rights or remedies consequent thereon.
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Mortgagee may release, regardless of consideration, any part of the
security held for the indebtedness secured by this Mortgage without, as to the
remainder of the security, in any way impairing or affecting the lien of this
Mortgage or its priority over any subordinate lien.
5.3 Expenses. Upon an Event of Default hereunder, Mortgagor shall pay
to Mortgagee such further amount as shall be sufficient to reimburse it fully
for all costs and expenses of collection of the Note and the enforcement of any
security for the Note including without limitation, Mortgagee's fees and
expenses for enforcing this Mortgage or any rights hereunder, reasonable
attorneys', accountants' and appraisers' fees and expenses, court costs and any
taxes and fees or governmental charges incident to such enforcement of rights
and collection.
ARTICLE 6
Miscellaneous
6.1 Binding Effect. All of the terms, covenants and conditions of this
Mortgage shall bind Mortgagor and its respective heirs, devisees,
administrators, executors, successors and assigns and shall inure to the benefit
of and be available to Mortgagee, and its successors and assigns.
6.2 Interpretation; Time of the Essence. All references to Mortgagor
and Mortgagee shall be read in the singular or plural and in the masculine,
feminine, or neuter gender, as the sentence may require. Time is of the essence
with respect to each and every obligation of Mortgagor under the Note, the
Mortgage and the other Loan Documents.
6.3 Governing Law. This Mortgage shall be governed by the laws of the
State of Ohio. In the event that any provision of this Mortgage conflicts with
applicable law, such conflict shall not affect other provisions of this Mortgage
or the Note which can be given affect without the conflicting provisions, and to
this end the provisions of this Mortgage are declared to be severable.
6.4 Covenants Run With Land. All of the covenants of this Mortgage
shall run with the land constituting the Premises.
6.5 Headings. The headings to the articles and sections hereof are for
reference only and do not limit in any way the content thereof.
6.6 Additional Assurances. Mortgagor hereby agrees to promptly execute
and deliver such further instruments and assurances and will do such further
acts as Mortgagee may reasonably request to perfect the security interest of
Mortgagee in all or any portion of the Premises and/or to more effectively carry
out the purposes of the Note, Mortgage and/or other Loan Documents.
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6.7 Open-End Mortgage. In accordance with the provisions of Ohio
Revised Code Sections 5301.232 and 5301.233, this Mortgage is given to, and the
parties intend that it shall secure indebtedness in a maximum amount of Twenty
Million and 00/100 Dollars ($20,000,000.00) evidenced by the Note, which
indebtedness may include advances made by Mortgagee, after this Mortgage is
filed of record. The making of such advances is obligatory on the part of
Mortgagee subject to the terms and conditions provided for in the Note, Mortgage
and Loan Documents. The maximum amount of the unpaid balance of such
indebtedness, in the aggregate and exclusive of interest thereon, which is or
will be outstanding at any time, is that set forth above, provided that this
Mortgage shall also secure unpaid balances of advances made for the payment of
taxes, assessments, insurance premiums, or costs incurred for the protection of
the Premises.
6.8 Ohio Revised Code Section 1311.14. Mortgagor covenants and agrees
with Mortgagee that Mortgagee may, at its option, do all things provided to be
done by a Mortgagee under Section 1311.14 of the Ohio Revised Code, and any
amendments or supplements thereto, for the protection of Mortgagee's interest in
the Premises.
6.9 Obligations Unconditional. The obligations of the Mortgagor to make
payments of any and all amounts due hereunder shall be absolute and
unconditional without defense or set-off by reason of any default whatsoever
including, without limitation, a default by any tenant of the Premises under any
lease with the Mortgagor or under any other agreement or instrument between the
Mortgagee and the Mortgagor, and such payments to Mortgagee shall not be
decreased, abated, postponed or delayed for any reason whatsoever including,
without limitation, any acts or circumstances that may constitute failure of
consideration, destruction of or damage to the Premises, the taking of any part
of the Premises, commercial frustration of purpose, failure of any person to
perform or observe any agreement, whether expressed or implied, or any duty,
liability or obligation arising out of or connected with this Mortgage, the
Note, or any other Loan Document, or failure of any resident or occupant of the
Premises to pay the fees, rentals or other charges owed to Mortgagor, and
irrespective of whether or not any such resident or occupant of the Premises
receives either partial or total reimbursement as a credit against such payment,
it being the intention of the parties that the payments required of the
Mortgagor hereunder will be paid in full when due without any delay or
diminution whatsoever.
6.10 Waiver of Jury Trial. In consideration for the extension of the
Loan to Mortgagor by Mortgagee, Mortgagor hereby expressly waives the right to
trial by jury in any lawsuit or proceeding related to this Mortgage or arising
in any way from the Indebtedness Hereby Secured or the transactions between
Mortgagor and Mortgagee.
NOW, THEREFORE, if Mortgagor shall well and truly pay and discharge the
Indebtedness Hereby Secured as the same shall become due and payable and shall
perform and observe all of the terms, covenants and conditions to be performed
and observed by Mortgagor hereunder then this
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conveyance shall be null and void and shall be released by Mortgagee at the
expense of Mortgagor; otherwise this Mortgage is to remain in full force and
effect.
Remainder of page intentionally left blank. Signature page follows.
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IN WITNESS WHEREOF, Mortgagor has executed this Open-End Mortgage as of
the year and date first above written.
WITNESSES: MORTGAGOR:
/s/ Christina E. Hassan DURAMED PHARMACEUTICALS, INC.,
- ---------------------------------------- a Delaware corporation
Printed: Christina E. Hassan
--------------------------------
/s/ Joy E. Herald
- ----------------------------------------
Printed: Joy E. Herald By: /s/ Timothy J. Holt
-------------------------------- ------------------------------
Name: Timothy J. Holt
----------------------------
Its: Senior Vice President
& Chief Financial Officer
-----------------------------
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
The foregoing instrument was acknowledged before me this _____ day of
February, 2000, by Timothy J. Holt as Senior Vice President & Chief Financial
Officer of DURAMED PHARMACEUTICALS, INC., a Delaware corporation, on behalf
of the corporation.
/s/ Joy E. Herald
---------------------------------
Notary Public
This instrument was prepared by:
Laura L. Warren, Esq.
Keating, Muething & Klekamp, P.L.L.
1400 Provident Tower
One East Fourth Street
Cincinnati, Ohio 45202
(513) 579-6400
18
EXHIBIT A
PARCEL I: LEGAL DESCRIPTION FOR CONSOLIDATION 14.790 ACRE PARCEL
------------------------------------------------------
Being a parcel of land situated in Columbia Township, City of
Cincinnati, Hamilton County, Ohio, Section 28 and Section 29, Town 4, Fractional
Range 2, and being part of the property as conveyed in Official Record Book
6330, Page 419 of the deed records of the Recorders Office of Hamilton County,
Ohio, and being located within the following described points and the boundary
thereof:
Commencing at the northwest corner of the northeast quarter of Section
28; thence along the north-south half section line of said Section 28, South
05(degree)30'46" West, 115.50 feet to the east line of Lester Road, said point
being the Real Point of Beginning of the parcel herein described; thence with
the east line of said Lester Road on the following courses: (1) North
12(degree)35'24" West, 64.85 feet; (2) on a curve deflecting to the left and
having a radius of 392.00 feet, an arc length of 68.20 feet, and a chord bearing
North 14(degree)38'48" West, 68.11 feet to the south right-of-way line of the N
& W Railroad; thence with said south line on the following courses: (1) North
35(degree)34'43" East, 48.18 feet; (2) on a curve deflecting to the right and
having a radius of 1,833.46 feet; an arc length of 1366.45 feet, and a chord
bearing North 88(degree)40'07" East, 1,335.04 feet; (3) South 69(degree)41'23"
East, 188.00 feet; (4) South 20(degree)18'37" West, 15.00 feet; (5) South
69(degree)38'07" East, 40.14 feet to the northwesterly Limited Access line of
Interstate 71; thence with said northwesterly line on the following courses: (1)
South 47(degree)22'53" West, 101.58 feet; (2) South 17(degree)30'03" West, 68.97
feet; (3) on a curve deflecting to the right and having a radius of 1,839.86
feet, an arc length of 315.10 feet, and a chord bearing South 69(degree)37'01"
West, 314.72 feet; (4) South 82(degree)22'48" West, 83.23 feet; (5) North
5(degree)44'46" East, 42.43 feet; (6) South 76(degree)47'12" West, 251.19 feet;
(7) South 72(degree)35'28" West, 56.36 feet; (8) North 71(degree)06'11" West,
53.62 feet; (9) South 51(degree)46'24" West, 89.33 feet; (10) South
80(degree)56'32" West, 159.04 feet; (11) South 85(degree)44'06" West, 200.81
feet; (12) North 11(degree)43'07" West, 10.38 feet; (13) South 78(degree)17'53"
West, 57.31 feet; (14) North 88(degree)30'50" West, 62.00 feet; (15) North
65(degree)43'31: West, 129.08 feet; (16) North 83(degree)05'13" West, 47.44 feet
to the east line of Lester Road; thence with said east line on the following
courses: (1) North 01(degree)10'46" East, 142.95 feet; (2) North
12(degree)35'24" West, 58.62 feet to the Real Point of Beginning containing
14.790 acres more or less.
The above description is the result of a survey prepared by Carl D.
Walker of Savage, Walker & Associates, Inc., Ohio Registered Surveyor No. 6260
dated June 7, 1994.
PARCEL II: DESCRIPTION FOR CONSOLIDATION 2.302 ACRE PARCEL
------------------------------------------------
Being a parcel of land situated in Columbia Township, City of
Cincinnati, Hamilton County, Ohio, Section 28, Town 4, Fractional Range 2 and
being part of the property as conveyed in Official Record Book 6330, Page 419
and all of the property as conveyed in Registered Land Certificate No. 159327 of
the deed records of the Recorders Office and Registered Land Office of Hamilton
County, Ohio, and being located within the following described points and the
boundary thereof:
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Commencing at the northwest corner of the northeast quarter of Section
28; thence on the north-south half section line of said Section 28; South
05(degree)30'46" West, 313.05 feet to the northwesterly limited access line of
Interstate 71; thence with said northwesterly line North 84(degree)24'32"
West,21.18 feet to the Real Point of Beginning of the parcel herein described;
thence continuing with the said northwesterly line on the following courses: (1)
North 84(degree)24'32" West, 61.17 feet; (2) South 78(degree)08'00" West, 343.29
feet; (3) South 86(degree)56'55" West, 127.85 feet; (4) South 48(degree)47'12"
West, 18.99 feet; (5) North 41(degree)14'07" West, 20.54 feet to the south
right-of-way line of the N & W Railroad; thence with said south line on a curve
deflecting to the right and having a radius of 1,833.46 feet, an arc length of
629.03 feet, and a chord bearing North 53(degree)46'30" East, 625.95 feet to the
west right-of-way line of Lester Road; thence with said west line on the
following courses: (1) on a curve deflecting to the right and having a radius of
332.00 feet, an arch length of 32.36 feet, and a chord bearing South
41(degree)17'58" East, 32.35 feet, (2) on a curve deflecting to the right and
having a radius of 675.00 feet, an arc length of 89.71 feet, and a chord bearing
South 14(degree)12'08" East, 89.64 feet; (3) South 38(degree)47'14" East, 12.36
feet; (4) South 01(degree)10'46" West, 72.10 feet; (5) on a curve deflecting to
the right and having a radius of 30.00 feet, an arc length of 8.88 feet, and a
chord bearing South 60(degree)39'41" West, 8.85 feet; (6) on a curve deflecting
to the left and having a radius of 50.00 feet, an arc length of 125.97 feet and
a chord bearing South 03(degree)24'52" East, 95.20 feet; (7) South
01(degree)10'46" West, 9.11 feet to the Real Point of Beginning containing 2.302
acres more or less.
Included in the above described parcel is Registered Land Certificate
of Title No. 87180, described as follows:
Commencing at the northwest corner of the northeast quarter of Section
28; thence along the north-south half section line of said Section 28; South
05(degree)30'46" West, 168.63 feet; thence leaving said north-south line North
38(degree)47'14" West, 62.23 feet to the west line of Lester Road, said point
being the Real Point of Beginning of the parcel herein described; thence leaving
said west line North 38(degree)47'14" West, 90.04 feet; thence on a curve
deflecting to the right and having a radius of 1830.08 feet, an arc length of
38.26 feet, and a chord bearing North 64(degree)05'11" East, 38.26 feet to the
west line of Lester Road; thence with said west line on a curve deflecting to
the right having a radius of 675.00 feet, an arc length of 89.71 feet, and a
chord bearing South 14(degree)12'08" East, 89.64 feet to the Real Point of
Beginning containing .0407 acres more or less.
The above description is the result of a survey prepared by Carl D.
Walker of Savage, Walker & Associates, Inc., Ohio Registered Surveyor No. 6260
dated August 29, 1997.
20
EXHIBITS B, C, D
EXCLUDED PROPERTY