INVESTMENT PROPERTY SECURITY AGREEMENT (Robert J. Amsdell)
Exhibit 7.5
INVESTMENT PROPERTY SECURITY AGREEMENT
(Xxxxxx X. Xxxxxxx)
(Xxxxxx X. Xxxxxxx)
This Investment Property Security Agreement (this “Agreement”), is entered into as of the
7th day of December, 2006.
Xxxxxx X. Xxxxxxx, (hereinafter called “Debtor”), for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, hereby grants, pledges and assigns to The Huntington
National Bank, for itself and as agent (hereinafter called “Creditor”) a security interest in the
following shares of stock in U-Store-It Trust (the “Stock”) and securities account (the “Account”)
held with Xxxxxx Brothers Inc. (“Intermediary”), whether Debtor’s interest therein be now owned or
existing or hereafter arising or acquired, together with all substitutions, replacements,
exchanges, reissues and additions therefor or thereto:
| Account Number | Name and Address | |||
| and Title | of Intermediary | |||
Acct.
Nos: 835-50511
|
Name: Xxxxxx Brothers Inc. | |||
Stock Certificate Nos. 0041
|
Address: 000 Xxxx Xxxxxx, 0xx Xxxxx | |||
Name:
|
Xxx Xxxx, Xxx Xxxx 00000 | |||
16,266 shares of U-Store-It Trust, a |
||||
Maryland real estate investment trust |
as it exists on the date hereof and as it may be constituted in the future, and in
| • | any free credit balance or other money, now or hereafter credited to, or owing from intermediary to Debtor in respect of, the Account; | ||
| • | any securities (certificated or uncertificated), commodities contracts, instruments, documents, general intangibles, financial assets or other investment property arising in connection with, constituting a portion of, or distributed from the Account, now or in the future; | ||
| • | all books and records relating thereto; |
(all of the foregoing may be referred to herein as the “Collateral”) on the following terms and
subject to the following conditions:
Article 1. Other Credit Documents.
Section 1.1. Draw Promissory Note. This Agreement is executed pursuant to a Draw Promissory
Note from Amsdell and Amsdell, an Ohio general partnership to Creditor on or abut the date hereof
(the “Note”). The Note and all amendments, modifications, supplements and restatements thereto
from time to time are hereinafter referred to collectively as the “Loan Documents.”
Article 2.
Security Interest.
Section 2.1. Control Agreement. Simultaneously with the execution and delivery of this
Agreement, Debtor, Creditor and Intermediary have executed and delivered the that certain Pledged
Collateral Account Control Agreement of even date herewith (the “Control Agreement”) for the
purpose of providing Creditor with control of the Account and Stock and perfecting the security
interest granted
by Debtor to Creditor herein. Debtor has caused to be delivered to the Intermediary the Stock
and fully executed stock powers endorsed in blank (the “Stock Powers”).
Section 2.2. Secured Obligations. The security interest hereby granted is to secure the
prompt and full payment and complete performance of all Obligations of Debtor to Creditor. The
word “Obligations” is used in its most comprehensive sense and includes, without limitation, all
indebtedness, debts and liabilities (including principal, interest, late charges, collection
costs, attorneys’ fees to the extent permitted by law and the like) of Debtor to Creditor,
pursuant to the Note or with respect to any Rate Management Transaction (as defined in the Note),
including but not limited to, the provisions of any ISDA Master Agreement entered into by Debtor
and Creditor, or any of Creditor’s subsidiaries or affiliates, any Schedule attached thereto and
all confirmations issued in connection therewith.
The absence of any reference to this Agreement in any documents, instruments or agreements
evidencing or relating to any Obligation secured hereby shall not limit or be construed to limit
the scope or applicability of this Agreement.
Section 2.3. Voting, Trading Rights, and Dividends. Without the prior written consent of
Creditor, Debtor shall not make any trades in the Account. Provided that Creditor has not delivered
a Notice of Exclusive Control (as that term is defined in the Control Agreement) to the
Intermediary, Debtor may exercise any voting or consensual rights that it may have as to any of the
Collateral for any purpose which is not inconsistent with this Agreement. If Creditor has provided
to Intermediary a Notice of Exclusive Control, Creditor may exercise all voting or consensual
rights as to any of the Collateral and Debtor shall deliver to Creditor all notices, proxy
statements, proxies and other information and instruments relating to the exercise of such rights
received by Debtor from the issuers of any of the Collateral promptly upon receipt thereof and
shall at the request of Creditor execute and deliver to Creditor any proxies or other instruments
which are, in the judgment of Creditor, necessary for Creditor to validly exercise such voting and
consensual rights. As long as no Default has occurred and is continuing hereunder, Debtor may
withdraw dividends and interest paid with respect to the Collateral.
Section 2.4. Duty of Creditor. If Creditor takes possession of any of the Collateral, the
duty of Creditor with respect to the Collateral shall be solely to use reasonable care in the
physical custody thereof, and Creditor shall not be under any obligation to take any action with
respect to any of the Collateral or to preserve rights against prior parties. The powers conferred
on Creditor hereunder are solely to protect its interest in the Collateral and do not impose any
duty upon it to exercise any such powers. Debtor is not looking to Creditor to provide it with
investment advice. Creditor shall have no duty to ascertain or take any action with respect to
calls, conversions, exchanges, maturities, tenders or other matters concerning any Collateral,
whether or not Creditor has or is deemed to have knowledge of such matters, or as to the taking of
any necessary steps to preserve any rights pertaining to any Collateral.
Section 2.5. Subsequent Changes Affecting Collateral. Debtor acknowledges that it has made
its own arrangements for keeping informed of changes or potential changes affecting the Collateral
(including, but not limited to, conversions, subscriptions, exchanges, reorganizations, dividends,
tender offers, mergers, consolidations and shareholder meetings) and Debtor agrees that Creditor
has no responsibility to inform Debtor of such matters or to take any action with respect thereto
even if any of the Collateral has been registered in the name of Creditor or its agent or nominee.
Section 2.6. Return of Collateral. Except as provided in the Consent Agreement, and except as
otherwise provided herein, the security interest granted to Creditor hereunder shall not terminate
and Creditor shall not be required to return the Collateral to Debtor or to terminate its security
interest therein unless and until (a) the Obligations have been fully paid or performed, (b) all
of Debtor’s obligations hereunder have been fully and indefeasibly paid or performed, (c) the
obligations of all parties
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to the Loan Documents have been fulfilled, and (d) Debtor has reimbursed Creditor for any expenses
of returning the Collateral and filing any termination statements and other instruments as are
required to be filed in public offices under applicable laws.
Section 2.7. Tax Reporting. All items of income, gain, expense and loss recognized in the
Account shall be reported to the Internal Revenue Service and all state and local taxing
authorities under the name and taxpayer identification number of Debtor. To the extent Creditor
becomes the registered Owner of the Collateral, the Creditor shall (i) report to the Internal
Revenue Service all income, gains, losses and expenses associated with the Collateral and (ii)
credit the Obligations by the amount of the value of the Collateral on the date Creditor becomes
the registered owner of the Collateral.
Article 3. Representations and Warranties. Debtor hereby represents and warrants to Creditor as
follows:
Section 3.1. Enforceability. This Agreement and the Control Agreement have been duly executed
and delivered by Debtor, constitute its valid and legally binding obligations and are enforceable
in accordance with their respective terms against Debtor except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principle.
Section 3.2. No Conflict. The execution, delivery and performance of this Agreement and the
Control Agreement, the grant of the security interest in the Collateral hereunder and the
consummation of the transactions contemplated hereby and thereby will not, with or without the
giving of notice or the lapse of time, to the best of the undersigned’s reasonable and present
knowledge, (a) violate any material law applicable to Debtor, (b) violate any judgment, writ,
injunction or order of any court or governmental body or official applicable to Debtor, (c)
violate or result in the breach of any material agreement to which Debtor is a party or by which
any of its properties, including the Collateral, is bound; (d) conflict with, or result in any
breach of any of the provisions of, or constitute a default under, or result in the creation or
imposition of, any lien upon any of the property of Debtor pursuant to, the provisions of the
articles of incorporation or bylaws of Debtor; nor (e) violate any restriction on the transfer of
any of the Collateral.
Section 3.3. No Consents. No consent, approval, license, permit or other authorization of any
third party (other than Intermediary) or any governmental body or officer is required for the
valid and lawful execution and delivery of this Agreement and the Control Agreement, the creation
and perfection of Creditor’s security interest in the Collateral, or the valid and lawful exercise
by Creditor of remedies available to it under this Agreement, the Control Agreement or applicable
law, or of the voting and other rights granted to it in this Agreement or the Control Agreement,
except as may be required For the offer or sale of those items of Collateral which are securities
under applicable securities laws.
Section 3.4.
Account. The securities entitlements credited to the Account are valid and
genuine and Debtor has provided Creditor with a complete and accurate statement of the financial
assets and the money credited to the Account as of the date hereof.
Section 3.5.
Security Interest. Debtor is the sole owner of the Collateral free and clear of
all liens, encumbrances and adverse claims (other than those created by this Agreement), has the
unrestricted right to grant the security interest provided for herein to Creditor and has granted
to Creditor a valid and perfected first priority security interest in the Collateral free of all
liens, encumbrances, transfer restrictions and adverse claims except for rights of the
Intermediary under the Control Agreement.
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Section 3.6. Information. None of the information, documents, or financial statements which
have been supplied by Debtor or its officers, agents or representatives to Creditor or any of its
representatives in connection with the transactions contemplated by this Agreement or the Loan
Documents contains any untrue statement of material fact or omits to state any material fact
required to be stated hereby or thereby to make such statements not misleading.
Article 4. Covenants. Debtor hereby covenants and agrees with Creditor that Debtor shall:
Section 4.1. Defend Title. Defend its title to the Collateral and the security interest of
Creditor therein against the claims of any person claiming rights in the Collateral against or
through Debtor and maintain and preserve such security interest so long as this Agreement shall
remain in effect.
Section 4.2. No Transfer. Not sell or offer to sell or otherwise transfer or encumber any
portion of the Collateral.
Section 4.3. Control and Customer Agreements. Neither attempt to modify nor attempt to
terminate the Control Agreement or the customer agreement with Intermediary under which the
Account was established.
Section 4.4. Further Assurances.
(a) At Debtor’s expense, do such further acts and execute and deliver such additional
conveyances, certificates, instruments, legal opinions and other assurances as Creditor may at any
time request or require to protect, assure or enforce its interests, rights and remedies under
this Agreement.
(b) Promptly deliver to Intermediary for credit to the Account any certificate or instrument
constituting or representing any of the Collateral it may obtain possession from time to time,
forthwith duly endorsed in blank without restriction.
(c) Promptly deliver to Intermediary any endorsements or instruments which may be necessary
or convenient to transfer any financial assets held by Intermediary, which are registered in the
name of, payable to the order of, or specially endorsed to Debtor, to Intermediary or its
securities intermediary or to one of their respective nominees.
Section 4.5. Statements. Cause Intermediary to send to Creditor a complete and accurate copy
of every statement, confirmation, notice or other communication concerning the Account that
Intermediary sends to Debtor. All information furnished by Debtor concerning the Collateral or
otherwise in connection with this Agreement, is or shall be at the time the same is furnished,
accurate, correct and complete in all material respects.
Article 5. Default.
Section 5.1.
Events of Default. Any of the following shall constitute an event of default
(a “Default”) hereunder.
(a) If Debtor fails to pay or perform any of the Obligations when the same become due and
payable or performable, as the case may be, beyond any applicable notice and cure periods; or
(b) If any “Event of Default” under the Loan Documents; or
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(c) If Debtor fails to perform any obligation or violates any covenant contained in this
Agreement
or the Control Agreement other than those referred to in paragraph (a) above, and such failure
or violation
continues unremedied for a period of thirty (30) days after Creditor requests Debtor to remedy
such failure or violation; or
(d) If any representation or warranty made by Debtor in this Agreement, the Control Agreement
or any information contained in any financial statement or other document delivered to Creditor
by or on
behalf of Debtor contains any untrue statement of a material fact or omits to state a material
fact
necessary to make the statements therein not misleading in light of the circumstances in which
they were made.
If any of the foregoing events of default shall occur, Creditor shall have, in addition to any
other remedies available to it under Section 5.2 below and under the law or any agreement, the
rights and remedies of a secured party under Article 9 of the Uniform Commercial Code of The State
of Ohio (the “Uniform Commercial Code”).
Section 5.2. Remedies. If a Default has occurred and is continuing:
(a) Creditor may, in its discretion: (i) deliver a
Notice of Exclusive Control under the
Control
Agreement to Intermediary, (ii) cause the Account to be reregistered in its sole name or
transfer the
Account to another broker/dealer in its sole name; (iii) remove any Collateral from the
Account and
register such Collateral in its name or in the name of its broker/dealer, agent or nominee or
any of their
nominees; (iv) exchange certificates representing any of the Collateral for certificates of
larger or smaller
denominations, (v) exercise any voting, conversion, registration, purchase or other rights of
a holder of
any of the Collateral and any reasonable expense of such exercise shall be deemed to be an
expense of
preserving the value of such Collateral for the purposes of Section 6.1 below; (vi) cause the
Intermediary
to deliver the Stock and Stock Powers to Creditor; and (vii) collect, including by legal
action, any notes,
checks or other instruments for the payment of money included in the Collateral and compromise
or settle with any obligor of such instruments.
(b) If notice of the time and place of any public sale of the Collateral or the time after
which any
private sale or other intended disposition is required by the Uniform Commercial Code,
Debtor
acknowledges that five (5) days advance notice thereof will be a reasonable notice. Creditor
shall not be
obligated to make any sale of Collateral regardless of notice of sale having been given.
Creditor may
adjourn any public or private sale from time to time by announcement at the time and place
fixed therefor,
and such sale may, without further notice, be made at the time and place to which it was so
adjourned.
(c) If, under the Uniform Commercial Code, Creditor may purchase any part of the Collateral,
it may in payment of any part of the purchase price thereof, cancel any part of the Obligations.
(d) If any of the Collateral is sold on credit or for future delivery, it need not be retained
by Creditor until the purchase price is paid and Creditor shall incur no liability if the
purchaser fails to take
up or pay for such Collateral. In case of any such failure, such Collateral may be sold again.
(e) Debtor shall execute and deliver to the purchasers of the Collateral all instruments and
other
documents necessary or proper to sell, convey, and transfer title to such Collateral and, if
approval of any
sale of Collateral by any governmental body or officer is required, Debtor shall prepare or
cooperate fully
in the preparation of and cause to be filed with such governmental body or officer all
necessary or proper
applications, reports, and forms and do all other things necessary or proper to expeditiously
obtain such approval.
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(f) Any cash held by Creditor as Collateral and all cash proceeds of any sale of, collection
from, or other realization upon all or any part of the Collateral shall be applied (after payment
of any amounts payable to Creditor pursuant to Article 6 below) in whole or in part against, all or
any part of the Obligations in such order as Creditor may elect. Any surplus of such cash or cash
proceeds held by Creditor and remaining after payment in full of all of Creditor’s expenses
hereunder and the Obligations shall be paid over to Debtor or to whomever may be lawfully entitled
to receive such surplus.
Section 5.3.
Appointment of Creditor as Agent. In the event of an uncured Default, Debtor
hereby irrevocably appoints and constitutes Creditor, its successors and assigns, and any officer
or agent thereof, with full power of substitution, as Debtor’s true and lawful agent and
attorney-in-fact with full irrevocable power and authority in the place and stead of Debtor and in
the name of Debtor or in Creditor’s own name, from time to time in Creditor’s discretion for the
purpose of carrying out the provisions of this Agreement and taking any action or executing any
instrument that Creditor considers necessary or convenient for such purpose, including the power to
endorse and deliver checks, notes and other instruments for the payment of money in the name of and
on behalf of Debtor, to endorse and deliver in the name of and on behalf of Debtor securities
certificates and execute and deliver in the name of and on behalf of Debtor instructions to the
issuers of uncertificated securities, and to execute and file in the name of and on behalf of
Debtor financing statements (which may be photocopies of this Agreement) and continuations and
amendments to financing agreements in the State of Ohio or elsewhere and Forms 4, 5, 144 and
Schedules 13D and 13G with the United States Securities and Exchange Commission. This appointment
and power of attorney is a power coupled with an interest and is irrevocable and will not be
affected by the bankruptcy of Debtor or by the lapse of time. If Debtor fails to perform any act
required by this Agreement, Creditor may perform such act in the name of and on behalf of Debtor
and at its expense which shall be chargeable to Debtor under Article 6 below. Debtor hereby
consents and agrees that the issuers of, or obligors with respect to, the Collateral or any
registrar or transfer agent or trustee for any of the Collateral shall be entitled to accept the
provisions hereof as conclusive evidence of the rights of Creditor to effect any transfer pursuant
to this Agreement and the authority granted to Creditor herein, notwithstanding any other notice or
direction to the contrary heretofore or hereafter given by Debtor, or any other person, to any of
such issuers, obligors, registrars, transfer agents, or trustees.
Section 5.4.
Impact of Regulations. In the event of an uncured Default, Debtor acknowledges
that compliance with the Securities Act of 1933 and the rules and regulations thereunder and any
relevant state securities laws and other applicable laws may impose limitations on the right of
Creditor to sell or otherwise dispose of securities included in the Collateral. For this reason,
Debtor hereby authorizes Creditor to sell any securities included in the Collateral in such manner
and to such persons as would, in the judgment of Creditor, help to ensure that the transfer of
such securities will be given prompt and effective approval by any relevant regulatory authorities
and will not require any of the securities to be registered or qualified under any applicable
securities laws. Debtor understands that a sale under the foregoing circumstances may yield a
substantially lower price for such Collateral than would otherwise be obtainable if the same were
registered and sold in the open market, and Debtor shall not attempt to hold Creditor responsible
for selling any of the Collateral at an inadequate price even if Creditor accepts the first offer
received or if only one possible purchaser appears or bids at any such sale. If Creditor shall
sell any securities included in the Collateral at such sale, Creditor shall have the right to rely
upon the advice and opinion of any qualified appraiser or investment banker as to the commercially
reasonable price obtainable on the sale thereof but shall not be obligated to obtain such advice
or opinion. Debtor hereby assigns to Creditor any registration rights or similar rights Debtor may
have from time to time with respect to any of the Collateral.
Article 6. Expenses.
Section 6.1.
Payment. Debtor agrees that it will forthwith upon demand pay to Creditor:
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(a) the amount of any taxes which Creditor may have been required to pay by reason of holding
the Collateral or to free any of the Collateral from any lien encumbrance or adverse claim
thereon, and
(b) the amount of any and ail reasonable out-of-pocket expenses, including the
fees and
disbursements of counsel and of any brokers, investment brokers, appraisers or other experts,
that
Creditor may incur in connection with (i) the administration or enforcement of this Agreement,
including
such expenses as are incurred to preserve the value of the Collateral and the validity,
perfection, rank and
value of Creditors security interest therein, (ii) the collection, sale or other disposition
of any of the
Collateral, (iii) the exercise by Creditor of any of the rights conferred upon it hereunder,
or (iv) any action
or proceeding to enforce its rights under this Agreement or in pursuit of any non-judicial
remedy hereunder, including the sale of the Collateral.
Any such amount not paid on demand shall bear interest (computed on the basis of the number of
days elapsed over a year of three hundred sixty (360) days) at a rate per annum equal to
Creditor’s Prime Commercial Rate
plus three (3) percentage points. As used herein, “Prime
Commercial Rate” shall mean the rate established by Creditor from time to time based on its
consideration of economic, money market, business and competitive factors. The Prime Commercial
Rate is not necessarily Creditor’s most favored rate.
Section 6.2. Indemnity. Debtor shall indemnify Creditor and its directors, officers,
employees, agents and attorneys against, and hold them harmless from, any liability, cost or
expense, including the fees and disbursements of their legal counsel, incurred by any of them
under the corporate or securities laws applicable to holding or selling any of the Collateral,
except for liability, cost or expense arising out of the gross negligence or willful misconduct of
the indemnified parties.
Section 6.3. Discharge of Liens. At its option, Creditor may pay and discharge taxes, liens,
security interests or other encumbrances on the Collateral. Debtor agrees to reimburse Creditor
under Section 6.1 above for any payment made or any expense incurred including reasonable
attorneys’ fees) by Creditor pursuant to the foregoing authorization.
Article 7. Miscellaneous.
Section 7.1. This Agreement. This Agreement, the schedules and exhibits hereto and the
agreements and instruments required to be executed and delivered hereunder set forth the entire
agreement of the parties with respect to the subject matter hereof and supersede and discharge all
prior agreements (written or oral) and negotiations and all contemporaneous oral agreements
concerning such subject matter and negotiations. There are no oral conditions precedent to the
effectiveness of this Agreement.
Section 7.2. Non-Waiver. Neither the failure of nor any delay by any party to this Agreement
to enforce any right hereunder or to demand compliance with its terms is a waiver of any right
hereunder. No action taken pursuant to this Agreement on one or more occasions is a waiver of my
right hereunder or constitutes a course of dealing that modifies this Agreement.
Section 7.3. Waivers. No waiver of any right or remedy under this Agreement shall be binding
on any party unless it is in writing and is signed by the party to be charged. No such waiver of
any right or remedy under any term of this Agreement shall in any event be deemed to apply to any
subsequent default under the same or any other term contained herein.
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Section 7.4.
Amendments. No amendment, modification or termination of this Agreement shall be
binding on any party hereto unless it is in writing and is signed by the party to be charged.
Section 7.5. Severability. If any term of provision forth in this Agreement shall be invalid or
unenforceable, the remainder of this Agreement, or the application of such terms or provisions to
persons or circumstances, other than those to which it is held invalid or unenforceable, shall be
construed in all respects as if such invalid or unenforceable term or provision were omitted.
Section 7.6. Successors. The terms of this Agreement shall be binding upon Debtor, its
successors and assigns, and shall inure to the benefit of Creditor, its successors and assigns and
any holder, owner or assignee of any rights in any of the Loan Documents and will be enforceable
by them as their interest may appear.
Section 7.7. Third Parties. Except as set forth in Section 7.13, nothing herein expressed or
implied is intended or shall be construed to give any person other than the parties hereto any
rights or remedies under this Agreement.
Section 7.8. Joint Preparation. This Agreement shall be deemed to have been prepared jointly
by the parties hereto. Any ambiguity herein shall not be interpreted against any party hereto and
shall be interpreted as if each of the parties hereto had prepared this Agreement.
Section 7.9. Rales of Construction. In this Agreement, words in the singular number include
the plural, and in the plural include the singular, words of the masculine gender include the
feminine and the neuter, and when the sense so indicates words of the neuter gender may refer to
any gender and the word “or” is disjunctive but not exclusive. The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience. They do not define,
limit or describe the scope or intent of the provisions of this Agreement.
Section 7.10. Notices. Any notice, request or other communication required or permitted to be
given under this Agreement shall be given in the manner set forth in the Loan Documents.
Section 7.11.
Counterparts. This Agreement may be executed in any number of counterparts, all
of which shall constitute one and the same instrument, and any party hereto may execute this
Agreement by signing and delivering one or more counterparts.
Section 7.12.
Legal Matters.
(a) Choice of Law. The validity, terms, performance and enforcement of this Agreement
shall be
governed by those laws of the State of Ohio which are applicable to agreements which are
negotiated,
executed, delivered and performed solely in the State of Ohio.
(b) Jurisdiction, Venue, Service of Process. The State and Federal District Courts located
in
Cuyahoga County, State of Ohio shall have exclusive jurisdiction and venue of any action or
proceeding
arising out of or related to the negotiation, execution, delivery, performance, breach or
enforcement of
this Agreement or any other agreement, document or instrument negotiated, executed, delivered,
entered
into or performed in connection with this Agreement or any of the transactions contemplated
hereby or
thereby; any waiver, modification, amendment or termination hereof or thereof or any action
taken or
omission made by Debtor or Creditor or any of their respective directors, officers, employees,
agents or
attorneys in connection with the payment, performance, exercise or enforcement of any right,
duty or
obligation created or implied hereby or thereby or arising hereunder or thereunder, regardless
of whether
any claim, counterclaim or defense in any such action, suit or proceeding is characterized as
arising out of
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fraud, negligence, recklessness, intentional misconduct, a breach of contract or fiduciary duty, or
violation of a statute, law, ordinance, and or regulation. The parties hereto hereby irrevocably
consent to the personal jurisdiction of such courts, to such venue and to the service of process in
the manner provided for the giving of notices in this Agreement. The parties hereto hereby waive
all objections to such jurisdiction and venue including those which might be based upon
inconvenience or the nature of the forum.
(c) Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS AGREEMENT OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (2)
IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF
THEM WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE;
AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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page immediately follows]
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IN WITNESS WHEREOF, Debtor has signed this Investment Property Security Agreement as of the date first set forth above.
| DEBTOR: | ||||
| /s/ Xxxxxx X. Xxxxxxx
|
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| Xxxxxx X. Xxxxxxx |
| Accepted as of this 7 day of December, 2006. | ||||
| CREDITOR: The Huntington National Bank | ||||
| /s/ Xxxx X. Terreno | ||||
By:
|
Xxxx X. Terreno
|
|||
Its:
|
VP | |||
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