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EXHIBIT 10.26
OHIO OPEN END MORTGAGE
[BANK ONE LOGO] AMOUNT $720,000.00
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The undersigned, OIOPT Acquisition Corp. ("Mortgagor"), for the
following purposes and in consideration of --Seven Hundred Twenty Thousand and
00/100-------Dollars ($720,000.00) paid by BANK ONE, Dayton, NA, having an
office at Kettering Tower Dayton, Ohio 45401 ("Mortgagee") does grant and
convey unto Mortgagee, its successors and assigns, all right, title and interest
Mortgagor now has or hereafter may have in and to all the premises located in
Moraine, Xxxxxxxxxx County, Ohio more specifically described in Exhibit A
attached hereto and made a part hereof, including such real property, all
buildings now or hereafter attached to or used in connection therewith, all
hereditaments privileges and appurtenances thereunto belonging, all fixtures
and articles annexed thereto as permanent accessions now or hereafter used in
connection therewith, and all leases, rents, issues and profits which may
arise therefrom, be the same more or less, but subject to all legal highways
("Mortgaged Property").
1. USE AND PURPOSE. To have and to hold the Mortgaged Property to
Mortgagee, its successors and assigns, for the use and purpose of
securing the following (collectively "Indebtedness" or "Obligations"):
(a) DEBT SECURED. Payment of the Indebtedness evidenced by the
following instruments, including any amendments, extensions or
renewals thereof in the aggregate sum of the consideration
expressed above with interest, and the performance and
observance of each term thereof by the parties obligated thereon
and any guarantor thereof (singularly and collectively
"Obligor"):
(i) Promissory Note $720,00.00 OIOPT Acquisition Corp.
-------------------- ----------- ------------- -------------------------
Instrument Amount Date Obligor
Educational Medical, Inc.
------------------------- ------------------------ ---------------------
Guarantor Obligor Obligor
(b) ADVANCES FOR TAXES, INSURANCE, ETC. Upon request of Mortgagee,
Xxxxxxxxx also hereby agrees to pay to Mortgagee monthly a sum
equal to 1/12 of the annual taxes, assessments and reassessments
levied against the Mortgaged Property and of the annual
premium of insurance insuring the Mortgaged Property as
estimated or computed in each instance by Mortgagee, which
payments Mortgagee is hereby authorized to accumulate and
commingle with other funds of Mortgagee without any obligation
to pay interest thereon and use for the payment of taxes,
assessments, reassessments and insurance premiums, as they
become due and payable, provided the amount deposited with
Mortgagee for such purposes including any amount of additional
deposit requested by Mortgagee is sufficient with which to pay
the same. In addition to the right herein granted and in
addition to the Indebtedness and Obligations secured hereby,
this Mortgage will also secure unpaid balances of advances made
by Mortgagee with respect to the Mortgaged Property for the
payment of taxes, assessments, insurance premiums or costs
incurred for the protection of the Mortgaged Property;
(c) OTHER ADVANCES. Payment by Mortgagor to Mortgagee of all sums
expended or advanced by Mortgagee pursuant to any term or
provision of this Mortgage;
(d) PERFORMANCE. Performance and observance of each covenant and
agreement herein, in the Indebtedness and Obligations secured
and in any other agreement relating to such, as construction
loan agreements and contracts;
(e) FUTURE ADVANCES. Unpaid balances of loan advances made after
this Mortgage will be delivered to the recorder for recording to
the extent that the total unpaid indebtedness, exclusive of
interest thereon, does not exceed the consideration set forth
above which will be the maximum amount of indebtedness that may
be outstanding at any time; and
(f) OTHER DEBTS. Payment by Mortgagor to Mortgagee of all other
liabilities and indebtedness, direct or contingent, now or
hereafter owing by Mortgagor to Mortgagee.
2. COVENANTS OF MORTGAGOR. Mortgagor covenants and agrees with Mortgagee
as follows:
(a) TITLE AN USE. At the time hereof Mortgagor is well seized of
the Mortgaged Property, has title with a good and indefeasible
estate in fee simple and has good right to bargain, sell
convey, and encumber as set forth herein; that Mortgagor will
warrant and defend title to the Mortgaged Property forever
against the claims and demands of all persons whomsoever, that
the Mortgaged Property is free and clear of all easements,
reservations, conditions, restrictions and encumbrances
whatsoever, except liens for taxes and assessments not yet due
and payable, building and use restrictions of record, zoning
ordinances, if any, and the exceptions which may be set forth
on Exhibit B attached hereto and made a part hereof;, that to
the best of Mortgagor's knowledge the Mortgaged Property while
held by Mortgagor or any previous owner has not been used
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contrary to law to use, generate, store or dispose of
materials such as toxic waste or hazardous substances commonly
identified by governmental regulations as hazardous including
but not limited to flammable, explosive, corrosive, reactive,
radioactive or otherwise hazardous to human use of the
Mortgaged Property ("Hazardous Materials") and there has been
no seepage, spills, release or discharge of Hazardous
Materials on the Mortgaged Property at any time.
(b) INSURANCE. Mortgagor will keep all buildings and other
insurable property now or hereafter erected or placed in or on
the Mortgaged Property insured against loss or damage by fire,
flood, builder's risk, the several hazards comprehended from
time to time within all risk, extended coverage terms, including
boiler and pressure vessel hazards, if applicable, war damage,
when available, and such other hazards, casualties and
contingencies, in such amounts at replacement costs, and for
such periods as may be required by Mortgagee and at no time will
the amount of fire and extended coverage be less than the
full insurable value of the Mortgaged Property. Further
Mortgagor will maintain comprehensive public liability insurance
for injuries to persons, including death, and property damage or
loss of use in amounts acceptable to Mortgagee. All such
insurance will be carried in companies approved by Mortgagee and
will include a provision satisfactory to it making loss payable
to Mortgagee or naming Mortgagee as an insured as its interest
may appear. Mortgagor will promptly pay when due all insurance
premiums and upon request of Mortgagee will promptly deliver the
policies, certificates of insurance or any renewal thereof to
Mortgagee. Should any loss occur to the the Mortgaged Property,
Mortgagor will promptly give written notice to Mortgagee of such
loss or damage and will not adjust or settle such loss without
the written consent of Mortgagee, and Mortgagee is hereby
appointed attorney-in-fact for Mortgagor to make proof of loss
or damage if Xxxxxxxxx fails to do so promptly, to receive any
sums collected under said policies, which sums or any part
thereof at the option of Mortgagee may be applied as payment for
the indebtedness or to the restoration or repair of the
Mortgaged Property so destroyed or damaged, and, in the event
any insurance losses are paid by check, draft or other
instrument payable to Mortgagor, Mortgagee may endorse
Xxxxxxxxx's name thereon and take such further steps in behalf
of Mortgagor as are necessary to realize on such instrument.
Application of insurance proceeds to payment indebtedness will
not extend, postpone, or waive installments otherwise due, or
change the amount of payments to be made, and proceeds may be
applied in such order and in such amounts as Mortgagee may
elect. In the event of foreclosure of this Mortgage, all
right, title and interest of Xxxxxxxxx in and to any insurance
policies then in force will pass to Mortgagee who is hereby
appointed attorney-in-fact for Mortgagor to assign and
transfer such policies.
(c) MAINTENANCE. Mortgagor will at all times maintain the Mortgaged
Property in good and substantial repair, free from waste or
nuisance of any kind; will make all repairs, replacements,
improvements and additions which may be necessary to preserve
and maintain the Mortgaged Property; will permit the Mortgagee,
its agents or representatives, to inspect the same at any
reasonable time; will comply with any reasonable requirements
made by Mortgagee with respect to maintaining and preserving the
Mortgaged Property; has an will comply with all laws,
ordinances and regulations affecting the Mortgaged Property or
its use and will not use, generate, store or dispose of
Hazardous Materials in, on, under or around the Mortgaged
Property or permit anyone to use the Mortgaged Property for
such purposes and will not permit to occur any seepage, spill,
release or discharge of Hazardous Materials on or onto the
Mortgaged Property at any time, and will indemnify Mortgagee
for any loss arising out of the presence of Hazardous
Materials in any way on the Mortgaged Property and any
violation of federal, state or local environmental laws or
regulations, such as clean up costs, personal injury or death,
restoration, and remedial actions; will not alter, destroy or
remove any of the Mortgaged Property or permit the Mortgaged
Property to be altered, destroyed or removed or used for any
purpose other than that for which it is not used or permit the
Mortgaged Property to be altered, destroyed or removed or used
for any purpose other than that for which it is now used or
permit any easement thereon without first obtaining
Mortgagee's written permission; will complete in good
workmanlike manner any building or improvement
BANK ONE is an affiliate of BANK ONE CORPORATION,
Columbus, Ohio
-BANK ONE CORPORATION 1991
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which is being or may be constructed or repaired thereon: will
pay when due all claims for labor performed and material
furnished and will not permit any lien of mechanics or
materialmen nor any judgment lien to attach to the
Mortgaged Property. Xxxxxxxxx hereby authorizes and empowers
Mortgagee at its option to do all things authorized or
required to be done by Mortgagee under any present or future
law of the State of Ohio relating to improvement of or payment
of encumbrances on the Mortgaged Property or to the granting
of liens for work, labor, material or machinery in connection
with the construction of any building or other improvement on
the Mortgaged Property in protection of Mortgagee's interest
therein and Mortgagee will be subrogated to the claims of
any party paid with the proceeds.
(d) CONSTRUCTION. If any building or other improvements of the
Mortgaged Property are to be constructed or are under
construction and are not completed, Mortgagee will have the
right, upon the happening of any event of default, to enter into
possession of the Mortgaged Property and perform any and all
work and labor necessary to complete improvements substantially
in accordance with the plans and specifications therefor and
employ watchmen to protect the Mortgaged Property; all sums
expended by Mortgagee for such purposes will be deemed to have
been paid to Mortgagor and secured by this Mortgage. For this
purpose, Mortgagor hereby constitutes and appoints Mortgagee its
true and lawful attorney-in-fact with full power of substitution
to complete to the construction in the name of Xxxxxxxxx, and
hereby empowers said attorney or attorneys to use any funds of
Mortgagor including any balance which may be held in escrow and
any funds which may remain unadvanced hereunder for the purpose
of completing construction in the manner called for by the plans
and specifications; to make such additions and changes and
corrections in the plans and specifications which will be
necessary or desirable to complete construction as Mortgagee
deems necessary in its sole judgment and in substantially the
manner contemplated by the plans and specifications; to employ
such contractors, subcontractors, agents, architects and
inspectors as will be required for said purposes; to enforce or
otherwise without limitation deal with any bonding or insurance
company under any policy required hereunder as Mortgagor might
do in its own behalf; to pay, settle or compromise all existing
bills and claims which are or may be liens against the Mortgaged
Property, or which may be necessary or desirable for the timely
completion of construction or the removal of liens and
encumbrances; to execute all applications and certificates in
the name of Mortgagor which may be required by any construction
contract to do any and every act with respect to construction
which Mortgagor may do in its own behalf; and to prosecute and
defend all actions or proceedings in connection with
improvements on the Mortgaged Property and to take such action
and require such performance as Mortgagee deems necessary. This
power of attorney will be deemed to be a power coupled with an
interest which cannot be revoked. Said attorney-in-fact will
also have power to prosecute and defend all actions or
proceedings in connection with the construction of improvements
on the Property and to take such action and require such
performance as is deemed necessary.
Mortgagee will not be liable for any loss sustained by Mortgagor
resulting from Xxxxxxxxx's failure to enforce the power of
attorney granted herein or from any other act or omission of
Mortgagee in managing the Mortgaged Property. Nor will
Mortgagee be obligated to perform or discharge nor does
Mortgagee hereby undertake to perform or discharge any
obligation, duty or liability with respect to improvements and
Mortgagor will indemnify Mortgagee for, and hold Mortgagee
harmless from, any and all liability, loss or damage which may
or might be incurred in the exercise or failure to exercise any
of the rights granted to Mortgagee under this section or by
reason of any assignment to Mortgagee of the construction
contract, architectural agreements, plans and specifications and
other contract rights with respect to the Mortgaged Property.
Should Mortgagee incur any such liability or in defense of any
claims or demands relating thereto, the amount thereof,
including costs, expenses and reasonable attorney's fees, will
be secured hereby and Xxxxxxxxx will reimburse Mortgagee
therefore immediately upon demand. It is further understood
that this section will not operate to place responsibility upon
Mortgagee for the control, care, management or repair of the
Mortgaged Property or for the carrying out construction; nor
will it operate to make Mortgagee responsible or liable for any
waste committed on the Mortgaged Property by the contractor or
or any other parties, or for any dangerous or defective
condition of the Mortgaged Property, or for any negligence in
the management, upkeep, repair or control of the Mortgaged
Property resulting in loss, injury, or death to any contractor,
subcontractor, licensee, invitees, employee, agent or stranger.
(e) TAXES. Mortgagor will pay before they become delinquent, all
taxes (both general and special), agreements, water rates, sewer
service or other governmental or municipal charges, fines or
impositions lawfully levied or assessed against the Mortgaged
Property, or any part thereof, or upon the rents, income and
profits thereof, so that the lien and priority of this Mortgage
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will be fully preserved; will promptly at the request of
Mortgagee deliver to Mortgagee the receipt showing such payment;
and will allow no payment of any taxes, assessments or
governmental charges by a third party with subrogation
attaching; nor permit the Mortgaged Property or any part thereof
to be sold or forfeited for any tax, assessment or governmental
charge whatsoever.
(f) FURTHER ASSURANCES, CONDEMNATION. Xxxxxxxxx will execute,
acknowledge and deliver all and every further assurance in law
for the better assuring, conveying, assigning and transferring
to Mortgagee the Mortgaged Property hereby conveyed in such
manner as Mortgagee will require. All awards of damages in
connection with any condemnation or exercise of the power of
eminent domain for public use of or injury to any of the
Mortgaged Property are hereby assigned and will be paid to
Mortgagee, who may apply the same to payment of the
indebtedness, including a foreclosure deficiency and Mortgagee
is hereby authorized, in the name of Xxxxxxxxx, to execute and
deliver valid acqittances thereof and to appeal to any such
award. Application of proceeds to payment of indebtedness will
not extend, postpone, or solve installments otherwise due, or
change the amount of payments to be made, and proceeds may be
applied in such order and in such amounts as Mortgagee may
elect.
3. EVENTS OF DEFAULT. Mortgagee will have the Remedies and powers set
forth herein upon occurrence of any of the following "Events of
Default": (a) failure of Mortgagor or Obligor to make payment when due
of the principal or interest of the structured indebtedness or failure
to perform any terms of the Obligations; (b) failure of Obligor to
furnish satisfactory additional collateral; (c) failure of Mortgagor
to comply with any of the terms and conditions of this Mortgage; (d)
death of Mortgagor or Obligor, dissolution, termination of existence,
insolvency, business failure, appointment of a receiver for Mortgagor
or Obligor or any property of Mortgagor or Obligor, assignment for the
benefit of creditors or commencement of any proceeding under any
bankruptcy, reorganization, arrangement or liquidation law for
Mortgagor or Obligor, or if such proceedings are commenced by a
creditor and remain undismissed for thirty (30) days; (e) failure of
Mortgagor or Obligor to pay when due any premium on any policy of life
or other insurance pledged hereunder, or held in connection with the
Mortgaged Property; (f) Mortgagee deeming itself insecure and in good
faith believing that the prospect of payment or performance by
Xxxxxxxxx or Obligor is impaired; (g) the filing of a judgment or
statutory lien or the institution of any proceedings by foreclosure,
attachment, levy or otherwise against Mortgagor, Obligor, the
Mortgaged Property or any other collateral securing the indebtedness;
(h) failure of Mortgagor or Obligor to furnish Mortgages within thirty
(30) days after written request by Mortgagee, current financial
statements in form satisfactory to Mortgagee or to permit inspection
of any Mortgagor's or Obligor's books or records; (i) any
representation, warranty, statement, report, or application made, or
furnished, by Obligor or Mortgagor proving to have been false, or
erroneous, in any material respect at the time of the making thereof;
(j) the issuance of any tax levy or lien against Mortgagor or Obligor
or the failure to pay, withhold, collect or remit any tax when
assessed or due; (k) abandonment, sale, or transfer of the Mortgaged
Property by contract to sell or lease, by conveyance, assignment of
lease, rents or rights thereto, encumbering or granting other rights
therein, by Xxxxxxxxx; (l) a bulk sale of Obligor's assets; or (m) the
suspension of liquidation of Obligor's business.
4. REMEDIES. Upon an Event of Default Mortgagee may at its option
without notice and without affecting the validity or priority of the
lien hereby created or any right of Mortgagee hereunder:
(a) Perform any such defaulted covenant or agreement to such extent
as Mortgagee will determine and enter upon the Mortgaged
Property, inspect, repair and maintain the same and perform such
other acts thereon as Mortgagee will deem necessary or advisable
for any of the above purposes and all funds so advanced by
Mortgagee with interest thereon at the highest rate applicable
to the indebtedness as set forth in any instrument evidencing
the Indebtedness, from the date advanced until paid will be
secured hereby and will be repaid promptly without demand.
Nothing herein will be construed as requiring Mortgagee to
advance funds for any of the aforesaid purposes. Mortgagee
will have the right to take possession of the Mortgaged
Property, manage it and collect the rents, issues and profits
therefrom and apply the same less reasonable costs of
collection upon the indebtedness. Any and all of the rights
and remedies granted by this paragraph will accrue and become
available to Mortgagee upon such default whether or not a
receiver has been appointed or a foreclosure action has been
commenced;
(b) Declare without notice all sums secured hereby immediately due
and payable whether or not such default be remedied by
Xxxxxxxxx, to enforce any of the rights which accrue to
Mortgagee hereunder and to enforce any right or remedy of
Mortgagee under the laws of the State of Ohio. Upon
commencement of any judicial proceedings to enforce any right
under this Mortgage, the court in which such proceedings are
brought, at any time thereafter (without notice to Mortgagor
or any party claiming under Mortgagor, such notice being
hereby expressly waived, and without reference to the then
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value of the Mortgaged Property, to the use of the Mortgaged
Property as a homestead or to the solvency or insolvency of
any Obligor or other grounds for extraordinary relief) may
appoint a receiver for the benefit of Mortgagee with power to
take immediate possession of the Mortgaged Property, manage,
rent and collect the rents, issues and profits thereof and
such rents, issues and profits when collected may be applied
toward the payment of the indebtedness and the costs, taxes,
insurance or other items necessary for the protection and
preservation of the Mortgaged Property, including the expenses
of such receivership. In the event of a sale, judicial of
otherwise, of the Mortgaged Property, the Mortgaged Property
may be sold in one or more parcels as the Mortgagee may
determine.
WAIVER. To the extent permitted by law Xxxxxxxxx will not claim the
benefit of any stay, extension, valuation, appraisement or redemption
law now or at any time hereafter in force.
AVAILABILITY OF REMEDIES. Every right and remedy provided in this
Mortgage whether herein or by law conferred and may be enforced
concurrently therewith and no acceptance of the performance of any
obligation as to which Mortgagor will be in default, or waiver of
particular or single performance of any obligation or observance of any
covenant, will be construed as a waiver of the obligation or covenant or
as a waiver of any other default then, theretofore or thereafter
existing. Mortgagee's acceptance of less than the entire payment of
principal due or receipt of interest computed at a rate less than the
maximum permitted to be charged under the terms of any Obligation or
Indebtedness will not constitute a waiver of Mortgagee's rights
hereunder to thereafter require payment of the full amount of principal
and interest computed at such maximum rate and receipt of payments after
maturity, by acceleration, declaration, or otherwise of any instrument
of indebtedness in an amount less than that due will not constitute a
waiver of Mortgagee's rights to full payment unless so agreed in
writing.
7. INDULGENCE. Mortgagee may, at any time and without notice, deal with
Mortgagor or grant to Mortgagor or any Obligor any indulgence or
forbearance or any extension of time of payment of the Indebtedness, or
a release of liability for payment of the secured indebtedness, or may,
with or without consideration, release portions of the Mortgaged
Property from the lien hereof. No such act or acts of Mortgages will
effect the personal liability of any other Obligor for payment of the
Indebtedness or the lien of this Mortgage upon the remainder of the
Mortgaged Property for the full amount of the
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Indebtedness. Assumption of liability for the payment of the
Indebtedness by any other party will not release Mortgagor from
liability for the payment of the secured indebtedness, and the consent
of Mortgagee to any such assumption or to any sale, lease,
conveyance or transfer of the Mortgaged Property will not be construed
as a release of any Obligor. No delay or omission of Mortgagee to
exercise any right, power or remedy occurring upon any default will
exhaust or impair such right, power or remedy or will be construed to
be a waiver of any such default or acquiescence therein; and every
right, power and remedy given by this Mortgage may be exercised from
time to time and as often as may be deemed expedient by Mortgagee.
8. JOINT AND SEVERAL LIABILITY. The term "Mortgagor" wherever used in this
Mortgage will include the joint and several liability of not only the
persons signing this Mortgage, but also any person or persons who
hereafter may assume payment of any or all of the Indebtedness, together
with respective heirs, representatives, successors and assigns of such
persons, and the term "Mortgagee" wherever used in this Mortgage will
include any lawful owner, holder or pledgee of any Indebtedness.
9. FINANCIAL STATEMENTS. As long as the indebtedness remains unpaid in
whole or in part, Xxxxxxxxx agrees to furnish Mortgagee upon request by
Mortgagee, at such times reasonably required by Mortgagee, financial
statements certified by Xxxxxxxxx, including balance sheets and
statements of income and expense for such period requested by Mortgagee
including such information with respect to the Mortgaged Property as
Mortgagee will request.
10. DOWER. The undersigned, spouse of Mortgagor, if any, does hereby
remiss, release and forever quit-claim unto Mortgagee, its successors
and assigns all right, title and expectancy do dower in the Mortgaged
Property.
11. FEES AND EXPENSES. If Mortgagee incurs any costs and expenses
(including reasonable attorneys' fees) in connection with any action or
proceeding to sustain the lien of this Mortgage of its priority or to
enforce any of Mortgagee's rights hereunder or to recover any
Indebtedness, or for any title examination or title insurance policy
relating to title to the Mortgaged Property required by Mortgagee, or
in curing any default of Mortgagor under any lease, or other agreement,
all such sums will be paid by Mortgagor on demand, together with
interest thereon at the default rate from date of payment by Mortgagee.
To the maximum extent permitted by law, such sums will be secured by
this Mortgage and will be a lien on the Mortgaged Property prior to any
right, title or interest claimed upon the Mortgaged Property
subordinate to the lien of this Mortgage.
12. TIME IS OF THE ESSENCE. Time is of the essence in the performance of
the terms of this Mortgage, the Indebtedness and the Obligations.
13. INDEMNIFICATION. Xxxxxxxxx will protect, save harmless and Indemnify
Mortgagee from and against any and all claims, liabilities, costs and
expenses, of whatever nature. (Including court costs and attorneys'
fees), which may arise or result directly or indirectly, by reason of
the use, occupation or operation of the Mortgaged Property or any part
thereof, or of any violation of any covenants of this Mortgage.
14. ASSIGNMENT OF RENTS AND LEASES. Mortgagor hereby absolutely and
unconditionally assigns, transfers and sets over unto Mortgagee, its
successors and assigns, all present and future leases covering all or
any part of the Mortgaged Property and all of the rents,
income, receipts, revenues, issues and profits now due or which may
hereafter become due under the leases of any extensions or renewals
thereof, together with any and all rights and remedies which Mortgagor
may have against any tenant under any of the leases or others in
possession of the Mortgaged Property.
Mortgagee shall not be obligated to perform or discharge any
obligation or duty to be performed or discharged by Mortgagor under any
of the leases; and Mortgagor hereby agrees to indemnify Mortgagee for,
and to save Mortgagee harmless from, any and all liability, damage or
expense arising from any of the leases or from this assignment,
including attorneys' fees. This assignment shall not place
responsibility for the control, care, management or repair of the
Mortgaged Property upon Mortgagee. Upon any default in the payment of
the indebtedness, or upon any default in performance or observance of
any of the terms, covenants or agreements of this Mortgage or any one or
more of the other instruments securing the Indebtedness and Obligations
all rents assigned hereunder shall be paid directly to Mortgagee, and
Mortgagee may notify the tenants under the leases (or any other parties
in possession of the Mortgaged Property) to pay off the rents directly
to Mortgagee. Rents collected by Mortgagee may be applied toward the
payment of taxes, assets, insurance premiums, repairs, protection of the
Mortgaged Property, and other charges against the Mortgaged Property,
or in the reduction of the Indebtedness and the payment of interest as
Mortgagee may elect.
Mortgagor shall not lease the Mortgaged Property without
Mortgagee's consent, however, if Mortgagee consents to a lease
Mortgagor will comply with and observe the duties of lessor thereunder
and Xxxxxxxxx will furnish Mortgagee with a copy upon request.
Xxxxxxxxx agrees to provide Mortgagee a separate Assignment of Lease
upon request to clarify the rights of Xxxxxxxxx and Mortgagee
therein. The absence of a separate assignment will not affect the
rights of Mortgagee granted hereby.
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15. NOTICES. Any provision in this Mortgage requiring or permitting notice
or demand or request will be deemed satisfied by written notice
personally served on Mortgagor or Mortgagee, as the case may be, or as
of the fifth (5th) day after being mailed by United States Postal
Service, registered or certified mail, return receipt requested, postage
prepaid, addressed to Xxxxxxxxx as follows:
OIOPT Acquisition Corp.
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0000 Xxxxxxxxx Xx.
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Moraine, Ohio
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and addressed to Mortgagee as follows:
BANK ONE, Dayton, NA
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Kettering Tower
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Dayton, Ohio 45401
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Attn: Commercial Financial Services Division
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Either party may, by written notice to the other in the above manner,
specify a different address for notice purposes.
16. CONFLICTS. The terms of this Mortgage will prevail over conflicting
terms set forth in any of the Obligations secured.
17. SEVERABILITY. In the event that any provision of this Mortgage, the
Indebtness or Obligations or any other agreement conflicts with
applicable law, such conflict will not affect other provisions of this
Mortgage, which can be given effect without the conflicting provision,
and to this end the provisions of this Mortgage, the Indebtedness and
Obligations, and other agreements are declared to be severable.
18. FURTHER ASSURANCES. Mortgagor will, at its own expense, within fifteen
(15) days after request by Mortgagee, do, execute, acknowledge and
deliver all further acts, deeds, conveyances, transfers, security
interests, security agreements, financing statements, renewals,
certificates, affidavits, continuation statements and other documents
and assurances necessary or proper to effectuate, complete, or perfect,
or to continue and preserve, the Obligations of Mortgagor and the lien
provided for by this Mortgage in the Mortgaged Property or any part
thereof.
19. GOVERNING LAW. This Mortgage will be construed, interpreted, enforced
and governed by and in accordance with laws of the State of Ohio.
20. CAPTIONS & HEADINGS, GENDER & NUMBER. The captions or headings of the
provisions hereof are for convenience of reference only and will not
define or limit the terms hereof. Whenever the singular or plural
number, masculine or feminine or neuter gender is used herein, it will
equally include the other.
21. PROVIDING ALWAYS, that if Xxxxxxxxx will pay to Mortgagee the secured
Indebtedness with Interest and perform the secured Obligations at the
time and in the manner provided therein or under this Mortgage, then
these presents will be void and this Mortgage will be released and
cancelled at the cost of Mortgagor.
IN WITNESS WHEREOF, this Open End Mortgage has been executed at Dayton,
Ohio, this 14th day of July, 1993.
Signed, acknowledged and OIOPT Acquisition Corp.
delivered in the presence of: -------------------------------
/s/ Xxxxxxx X. Xxxxxxx BY: /s/ Xxxxx Xxxxxx
------------------------------ ---------------------------
Xxxxxxx X. Xxxxxxx Xxxxx Xxxxxx
/s/ Xxxxx X. Xxxxx ITS: V.P. - CFO
------------------------------ ---------------------------
Xxxxx X. Xxxxx
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PERSONAL ACKNOWLEDGMENT
STATE OF__________________________)
) SS.
COUNTY OF_________________________)
Before me, a Notary Public in any for said county and state, personally
appeared the above named_____________________________________________________
and _____________________________who acknowledged signing the foregoing
instrument and that the same is his/her/their free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and offical seal at
____________________________________________, this day of
_____________________, 19_________.
________________________________________
Notary Public
CORPORATE ACKNOWLEDGMENT
STATE OF Ohio
----------------------------)
) SS.
COUNTY OF Xxxxxxxxxx )
--------------------------
BEFORE ME, a Notary Public in and for said county and state, personally
appeared the above-named OIOPT Acquisition Corp. by Xxxxx Xxxxxx, its Vice
President and Chief Financial Officer, and ___________________________ its
___________________________________, who acknowledged that he/she/they did
sign the foregoing instrument for and on behalf of the partnership and
that the same is his/her/their free act and deed and the free act and deed of
the corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Dayton, Ohio, this 14th day of July, 1993.
/s/ Xxxxxxx X. Xxxxx
---------------------------------------
Notary Public
STATE OF
----------------------------)
) SS.
COUNTY OF
--------------------------)
BEFORE ME, a Notary Public in and for said county and state, personally
appeared the above-named __________________________ by _______________________
and __________________________ its partners, who acknowledged that he/she/they
did sign the foregoing instrument for and on behalf of the partnership and that
the same his/her/their free act and deed and the free act and deed of the
partnership.
IN TESTIMONY WHEREOF, I have hereunto set my hand official seal at
_______________________________, this _________ day of _____________________,
19________.
______________________________________
Notary Public
This instrument prepared by BANK ONE, Dayton NA
----------------------------------------
Address of BANK ONE: Kettering Tower Dayton, Ohio 45401
----------------------------------------------------------
9
EXHIBIT "A"
SITUATED IN THE CITY OF MORAINE, COUNTY OR XXXXXXXXXX, STATE OF OHIO AN BEING
LOTS NUMBERED THREE THOUSAND EIGHT HUNDRED FOUR (3804) AND FOUR THOUSAND FOUR
HUNDRED SEVENTY THREE (4473) OF THE CONSECUTIVE NUMBERS OF LOTS ON THE REVISED
PLAT OF THE SAID CITY OF MORAINE, OHIO.
