1
Exhibit 7.6
5/3 A FIFTH THIRD BANCORP BANK
THIRD PARTY COLLATERAL AGREEMENT
City Cleveland State Ohio July 6, 1998
In order to induce Fifth Third Bank of Northeastern Ohio 0000 Xxxx Xxxxx Xx.,
Xxxxxxxxx, XX 00000 and any affiliate of Fifth Third Bancorp (collectively,
"Bank") to make, continue, renew or extend a loan, loans or other financial
accommodations to Xxxxxxx X. Xxxxxxx 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxx 00000
("Debtor"), and in consideration thereof, the undersigned hereby consents and
agrees that the property (real or personal) described below (collectively, the
"Collateral"), of which the undersigned is the owner, may be and is hereby
pledged to Bank, for itself and as agent for any affiliate of Fifth Third
Bancorp, by the undersigned as collateral security for the following
(collectively, the "Obligations"): all loans, advances, indebtedness and other
obligations of debtor owed to Bank and/or any affiliate of Fifth Third Bancorp,
of every kind and description whether now existing or hereafter arising
including without limitation those owed to others and acquired by Bank (by
purchase, assignment or otherwise) and whether direct or indirect, primary or as
guarantor or surety, absolute or contingent, liquidated or unliquidated, matured
or unmatured, whether or not secured by additional collateral, and all
liabilities, obligations and indebtedness arising all instruments and agreements
evidencing, guarantying or securing any of the foregoing, and all obligations to
perform or forbear from performing acts, all amounts represented by letters of
credit now or hereafter issued by Bank for the benefit of or at the request of
Debtor and all expenses and attorneys' fees incurred by Bank under any other
document or instrument related thereto or related to any of the foregoing,
including but not limited to the following: $2,000,000 Draw Note dated July 6
1998.
The undersigned agrees that the Collateral may be received, held and/or disposed
of by Bank subject and pursuant to all the terms and conditions of any and all
notes, mortgages, contracts or agreements heretofore or hereafter signed by
Debtor or the undersigned in any capacity whatsoever, and Bank is hereby
authorized and empowered to take any and all action with respect to the
Collateral as authorized by the terms of any such note,
2
mortgage, contract or other agreement, all without notice to the undersigned,
except as otherwise provided by law. The undersigned further agrees that the
Collateral has been pledged with the same force and effect as if the Collateral
were owned by Debtor.
Without limiting Bank's powers and rights in dealing with the Collateral under
the terms and conditions of any note, mortgage, contract or agreement, Bank is
hereby authorized to act solely upon the instructions of Debtor relative to the
sale or other disposition of the Collateral, or any substitutions therefor, or
any proceeds thereof, and the receipt or acquittance of Debtor for the
Collateral or any part thereof, or any substitutions therefor, or any proceeds
thereof, shall be a valid and sufficient release and discharge of Bank's
liability to the undersigned.
The undersigned authorizes Bank at any time, without notice to the undersigned,
to transfer or cause to be transferred into Bank's name, or the name of its
nominee or nominees, any or all of the Collateral. The Bank is hereby given full
power at any time, without notice to the undersigned, to collect, sell, assign,
transfer and deliver all of the Collateral or any part thereof, or any
substitutes therefor, or any additions thereto, through any stock exchange or
broker's board or broker, or at private or public sale, without either demand on
or notice to the undersigned, or any advertisement, the same being hereby
expressly waived, at which sale Bank is authorized to purchase the Collateral,
or any part thereof, free from any right of redemption on the part of the
undersigned which is hereby expressly waived and released. In case of sale for
any cause, after deducting all costs and expenses of every kind, Bank may apply
the residue of the proceeds of such sale as it shall deem proper toward the
payment of any one or more or all of the Obligations of Debtor to Bank, whether
due or not due, returning the remainder, if any, to the undersigned, so long as
the Collateral is not pledged to secure the indebtedness of the undersigned or
any other party. Bank is hereby irrevocably appointed and constituted attorney
in fact for the undersigned, with full power of substitution, to collect all
dividends, interest, rents, royalties, and to exercise all voting rights
connected with or arising out of the Collateral.
No delay on Bank's part in exercising any power of sale, lien, option or other
right with respect to the Collateral, and no
3
notice or demand which may be given to or made upon the undersigned by Bank with
respect to any power of sale, lien, option or other right with respect to the
Collateral, shall constitute a waiver thereof, or limit or impair Bank's right
to take any action or to exercise any power of sale, lien option, or any other
right with respect to the Collateral without notice or demand, or prejudice
Bank's rights as against the undersigned in any respect. In addition, no action
taken by Bank with respect to the Collateral shall in any way impair or limit
Bank's right to exercise any or all rights or remedies Bank may otherwise have
against Debtor with respect to any Obligations. This Agreement shall not, in any
manner, be construed as a compromise of any Obligations. The pledge of, and
security interest in, the Collateral by the undersigned to Bank are absolute,
unconditional and continuing and will remain in full force and effect until the
Obligations have been fully paid and satisfied. The pledge of, and security
interest in, the Collateral will extend to an cover renewals of the Obligations
and any number of extensions of time for payment thereof and will not be
affected by any surrender, exchange, acceptance or release by the Bank of any
other pledge or any security held by it for any of the Obligations. Notice of
acceptance of the pledge and security interest, notice of extensions of credit
to the Debtor from time to time, notice of default, diligence, presentment,
protest, demand for payment, notice of demand or protest, notice of making,
renewing or extending any of the Obligations and any defense based upon a
failure of Bank to comply with the notice requirements of the applicable version
of Uniform Commercial Code are hereby waived. Bank, at any time and from time to
time, without the consent of the undersigned, may change the manner, place or
terms of payment of or interest rates on, or change or extend the time of
payment of, or renew or alter, any of the Obligations, without impairing or
releasing the liabilities of the undersigned of its obligations to continue to
pledge or grant a security interest in the Collateral. Bank in its sole
discretion may determine the reasonableness of the period which may elapse prior
to the making of demand for any payment upon the Debtor or any guarantor and it
need not pursue any of its remedies against any other party before having
recourse against the Collateral.
DESCRIPTION OF COLLATERAL
Collateral listed on Exhibit A attached hereto.
As used herein "undersigned", if there be more than one, shall
4
mean "all of the undersigned or each of any of them", and in such case they are
jointly and severally bound.
If the "undersigned" be more than one, Bank may release from the obligations
hereof the Collateral of one or more of the undersigned, and no such release
shall in any way affect or modify the rights of Bank with respect to the
Collateral of any other undersigned which has not been released. The undersigned
hereby acknowledges and consents that in security documents executed and
delivered to Bank in connection herewith, the undersigned may be referred to as
"Debtor" or "Borrower", whether or not the undersigned is a maker of any
promissory note or any endorser or guarantor thereof.
WITNESS the due execution hereof as of the date set forth above.
ADDRESS: OWNER(S) OF COLLATERAL
0000 Xxxxxx Xxxxxx Xxxxxxx Self Stor, Ltd.
Xxxxxx, Xxxx 00000 /s/ XXXXXXX X. XXXXXXX, MG MBR
----------------------------------
Xxxxxxx X. Xxxxxxx, Managing
Member
