1
EXHIBIT 10.7 (A) Richland County
AMENDMENT NO. 1 TO OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND
SECURITY AGREEMENT ("Amendment") is made this 28th day of October, 1998 by and
among D.I.Y. HOME WAREHOUSE, INC., an Ohio corporation, with its principal place
of business located at 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxx 00000
("Mortgagor"), NATIONAL CITY BANK, formerly known as National City Bank of
Columbus, a national banking association, with its principal office located at
000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (together with its successors, the
"Mortgagee"), and OLD KENT BANK, formerly known as Old Kent Bank and Trust
Company, a Michigan banking corporation, with its principal office located at
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxx 00000 ("Old Kent"), as lenders
(NCB and Old Kent each herein, separately, called a "Bank" and, collectively,
called the "Banks"), and NCB, as agent for itself and Old Kent (the "Agent").
WITNESSETH:
WHEREAS, Mortgagor executed and delivered to Mortgagee, Old Kent and
Agent an Open-End Mortgage, Assignment of Rents and Security Agreement dated
December 23, 1994 which Open-End Mortgage, Assignment of Rents and Security
Agreement encumbered the land described in the attached Exhibit A (the
"Mortgaged Property") and was recorded on December 27, 1994 in Official Records
Volume 344, page 1 of the Richland County, Ohio Recorder's Office (the
"Mortgage"); and
WHEREAS, the Mortgage was given to secure the payment of a certain
Mortgage Note dated December 23, 1994 in the original principal amount of
$4,500,000 from Mortgagor to Mortgagee (the "Original Mortgagee Note"); and
WHEREAS, the Mortgage was given to secure the payment of a certain
Mortgage Note dated December 23, 1994 in the original principal amount of
$4,500,000 from Mortgagor to Old Kent (the "Old Kent Note"); and
WHEREAS, Mortgagor has executed and delivered to Mortgagee that certain
First Amendment to Mortgage Note dated as of the date hereof (the "Amended
Mortgagee Note") which amends the Original Mortgagee Note (the Original
Mortgagee Note and the Amended Note are hereinafter collectively referred to as
the "Note"); and
WHEREAS, Mortgagor, Mortgagee, Old Kent and Agent have executed that
certain Fifth Amendment to Loan and Co-Lender Credit Agreement dated of even
date herewith (the "Loan Agreement") evidencing other amendments to the loan
evidenced by the Note (the "Loan"): and
2
WHEREAS, Mortgagor has paid Old Kent all amounts owed under the Old
Kent Note; and
WHEREAS, Mortgagor desires that Old Kent release its interests in the
lien of the Mortgage against the Mortgaged Property; and
WHEREAS, Agent is no longer serving as an agent in regard to the Loan;
and
WHEREAS, Mortgagor, Mortgagee, Old Kent and Agent desire to amend the
Mortgage with this Amendment as hereinafter set forth;
NOW THEREFORE, in consideration of the agreements hereinafter set
forth, the parties hereto, intending to be legally bound, agree as follows:
Section 1. Payment of Old Kent. Old Kent hereby acknowledges the
payment in full by Borrower of the Old Kent Note. Old Kent also hereby releases
any and all security interest held by Old Kent in regard to the repayment of the
Old Kent Note including, without limitation, Old Kent's interest in the
Mortgage. Old Kent hereby agrees to execute any and all reasonable documents
necessary to effectuate such payment and release of security interests.
Section 2. Release of Agent.Mortgagor, Mortgagee, Old Kent and Agent
hereby agree that the services of Agent under the Loan and this Mortgage are no
longer necessary. Therefore, subject to the terms of the Loan Agreement, Agent
is hereby released from any and all obligations under the Loan, the Loan
Agreement and this Mortgage arising after the date of this Amendment.
Section 3. Partial Release of Mortgage. Pursuant to that certain
Partial Release of Mortgage of even date herewith, Old Kent releases from the
terms of the Mortgage all of Old Kent's interests in the Mortgaged Property.
Section 4. Security/Cross-Collateralization. Mortgagor and Mortgagee
agree that the Mortgage, as amended herein, shall serve as security for (a) the
indebtedness represented by the Note, (b) the payment of all sums with interest
thereon advanced to protect the security of the Mortgage or the Note, (c) the
payment of and performance of Mortgagee under that certain Line of Credit Loan
as that term is defined in the Loan Agreement and (d) the payment of and
performance of Mortgagee under those certain Other Loans as that term is defined
in the Loan Agreement. All references to the Note in the Original Mortgage shall
refer to the Note as defined herein.
Section 5. Continuing Effect. Except as expressly amended hereby, the
Mortgage remains in full force and effect and is hereby ratified by the parties
in all respects.
Section 6. Counterparts. This Amendment may be executed in one or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together constitute one and the same
instrument.
3
IN WITNESS WHEREOF, Mortgagor, Mortgagee, Old Kent and Agent have
executed this Amendment as of the date first written above.
Signed and acknowledged in
in the presence of:
D.I.Y. Home Warehouse, Inc., an Ohio
corporation
/s/ XXXXX XXXXXXXX
--------------------------
Name: Xxxxx Xxxxxxxx
/s/ XXXXXXXX X. XXXXXXX By: /s/ XXXX X. XXXXXXXX
--------------------------- ----------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxxx
Its: V.P. - Chief Financial Officer
National City Bank, a national banking
association
/s/ XXXXXX X. ENGLISH
---------------------------
Name: Xxxxxx X. English
/s/ XXXXX X. XXXXXX By: /s/ XXXXXX XXXXXX
--------------------------- ----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxxx
Its: Vice President
National City Bank, a national banking
association, as Agent
/s/ XXXXXX X. ENGLISH
---------------------------
Name: Xxxxxx X. English
/s/ XXXXX X. XXXXXX By: /s/ XXXXXX XXXXXX
--------------------------- ----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxxx
Its: Vice President
Old Kent Bank, a Michigan banking corporation
/s/ XXX X. XXXXXX
---------------------------
Name: Xxx X. Xxxxxx
/s/ XXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
--------------------------- ----------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Its: Senior Vice President
4
EXHIBIT 10.7 (B) Xxxxx County
AMENDMENT NO. 1 TO OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND
SECURITY AGREEMENT ("Amendment") is made this 28th day of October, 1998 by and
among D.I.Y. HOME WAREHOUSE, INC., an Ohio corporation, with its principal place
of business located at 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxx 00000
("Mortgagor"), NATIONAL CITY BANK, formerly known as National City Bank of
Columbus, a national banking association, with its principal office located at
000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (together with its successors, the
"Mortgagee"), and OLD KENT BANK, formerly known as Old Kent Bank and Trust
Company, a Michigan banking corporation, with its principal office located at
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxx 00000 ("Old Kent"), as lenders
(NCB and Old Kent each herein, separately, called a "Bank" and, collectively,
called the "Banks"), and NCB, as agent for itself and Old Kent (the "Agent").
WITNESSETH:
WHEREAS, Mortgagor executed and delivered to Mortgagee, Old Kent and
Agent an Open-End Mortgage, Assignment of Rents and Security Agreement dated
December 23, 1994 which Open-End Mortgage, Assignment of Rents and Security
Agreement encumbered the land described in the attached Exhibit A (the
"Mortgaged Property") and was recorded on December 27, 1994 in Official Records
Volume 1758, page 155 of the Xxxxx County, Ohio Recorder's Office (the
"Mortgage"); and
WHEREAS, the Mortgage was given to secure the payment of a certain
Mortgage Note dated December 23, 1994 in the original principal amount of
$4,500,000 from Mortgagor to Mortgagee (the "Original Mortgagee Note"); and
WHEREAS, the Mortgage was given to secure the payment of a certain
Mortgage Note dated December 23, 1994 in the original principal amount of
$4,500,000 from Mortgagor to Old Kent (the "Old Kent Note"); and
WHEREAS, Mortgagor has executed and delivered to Mortgagee that certain
First Amendment to Mortgage Note dated as of the date hereof (the "Amended
Mortgagee Note") which amends the Original Mortgagee Note (the Original
Mortgagee Note and the Amended Note are hereinafter collectively referred to as
the "Note"); and
WHEREAS, Mortgagor, Mortgagee, Old Kent and Agent have executed that
certain Fifth Amendment to Loan and Co-Lender Credit Agreement dated of even
date herewith (the "Loan Agreement") evidencing other amendments to the loan
evidenced by the Note (the "Loan"): and
5
WHEREAS, Mortgagor has paid Old Kent all amounts owed under the Old
Kent Note; and
WHEREAS, Mortgagor desires that Old Kent release its interests in the
lien of the Mortgage against the Mortgaged Property; and
WHEREAS, Agent is no longer serving as an agent in regard to the Loan;
and
WHEREAS, Mortgagor, Mortgagee, Old Kent and Agent desire to amend the
Mortgage with this Amendment as hereinafter set forth;
NOW THEREFORE, in consideration of the agreements hereinafter set
forth, the parties hereto, intending to be legally bound, agree as follows:
Section 1. Payment of Old Kent. Old Kent hereby acknowledges the
payment in full by Borrower of the Old Kent Note. Old Kent also hereby releases
any and all security interest held by Old Kent in regard to the repayment of the
Old Kent Note including, without limitation, Old Kent's interest in the
Mortgage. Old Kent hereby agrees to execute any and all reasonable documents
necessary to effectuate such payment and release of security interests.
Section 2. Release of Agent.Mortgagor, Mortgagee, Old Kent and Agent
hereby agree that the services of Agent under the Loan and this Mortgage are no
longer necessary. Therefore, subject to the terms of the Loan Agreement, Agent
is hereby released from any and all obligations under the Loan, the Loan
Agreement and this Mortgage arising after the date of this Amendment.
Section 3. Partial Release of Mortgage. Pursuant to that certain
Partial Release of Mortgage of even date herewith, Old Kent releases from the
terms of the Mortgage all of Old Kent's interests in the Mortgaged Property.
Section 4. Security/Cross-Collateralization. Mortgagor and Mortgagee
agree that the Mortgage, as amended herein, shall serve as security for (a) the
indebtedness represented by the Note, (b) the payment of all sums with interest
thereon advanced to protect the security of the Mortgage or the Note, (c) the
payment of and performance of Mortgagee under that certain Line of Credit Loan
as that term is defined in the Loan Agreement and (d) the payment of and
performance of Mortgagee under those certain Other Loans as that term is defined
in the Loan Agreement. All references to the Note in the Original Mortgage shall
refer to the Note as defined herein.
Section 5. Continuing Effect. Except as expressly amended hereby, the
Mortgage remains in full force and effect and is hereby ratified by the parties
in all respects.
Section 6. Counterparts. This Amendment may be executed in one or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together constitute one and the same
instrument.
6
IN WITNESS WHEREOF, Mortgagor, Mortgagee, Old Kent and Agent have
executed this Amendment as of the date first written above.
Signed and acknowledged in
in the presence of:
D.I.Y. Home Warehouse, Inc., an Ohio
corporation
/s/ XXXXX XXXXXXXX
--------------------------
Name: Xxxxx Xxxxxxxx
/s/ XXXXXXXX X. XXXXXXX By: /s/ XXXX X. XXXXXXXX
--------------------------- ----------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxxx
Its: V.P. - Chief Financial Officer
National City Bank, a national banking
association
/s/ XXXXXX X. ENGLISH
---------------------------
Name: Xxxxxx X. English
/s/ XXXXX X. XXXXXX By: /s/ XXXXXX XXXXXX
--------------------------- ----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxxx
Its: Vice President
National City Bank, a national banking
association, as Agent
/s/ XXXXXX X. ENGLISH
---------------------------
Name: Xxxxxx X. English
/s/ XXXXX X. XXXXXX By: /s/ XXXXXX XXXXXX
--------------------------- ----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxxx
Its: Vice President
Old Kent Bank, a Michigan banking corporation
/s/ XXX X. XXXXXX
---------------------------
Name: Xxx X. Xxxxxx
/s/ XXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
--------------------------- ----------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Its: Senior Vice President
7
EXHIBIT 10.7 (C) Summit County
AMENDMENT NO. 1 TO OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND
SECURITY AGREEMENT ("Amendment") is made this 28th day of October, 1998 by and
among D.I.Y. HOME WAREHOUSE, INC., an Ohio corporation, with its principal place
of business located at 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxx 00000
("Mortgagor"), NATIONAL CITY BANK, formerly known as National City Bank of
Columbus, a national banking association, with its principal office located at
000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (together with its successors, the
"Mortgagee"), and OLD KENT BANK, formerly known as Old Kent Bank and Trust
Company, a Michigan banking corporation, with its principal office located at
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxx 00000 ("Old Kent"), as lenders
(NCB and Old Kent each herein, separately, called a "Bank" and, collectively,
called the "Banks"), and NCB, as agent for itself and Old Kent (the "Agent").
WITNESSETH:
WHEREAS, Mortgagor executed and delivered to Mortgagee, Old Kent and
Agent an Open-End Mortgage, Assignment of Rents and Security Agreement dated
September 15, 1995 which Open-End Mortgage, Assignment of Rents and Security
Agreement encumbered the land described in the attached Exhibit A (the
"Mortgaged Property") and was recorded on September 18, 1995 in Official Records
Volume 2011, page 370 of the Summit County, Ohio Recorder's Office (the
"Mortgage"); and
WHEREAS, the Mortgage was given to secure the payment of a certain
Mortgage Note dated September 15, 1995 in the original principal amount of
$2,300,000 from Mortgagor to Mortgagee (the "NCB Note"); and
WHEREAS, the Mortgage was given to secure the payment of a certain
Mortgage Note dated September 15, 1995 in the original principal amount of
$2,300,000 from Mortgagor to Old Kent (the "Old Kent Note"); and
WHEREAS, Mortgagor, Mortgagee, Old Kent and Agent have executed that
certain Sixth Amendment to Line of Credit Agreement dated of even date herewith
(the "Loan Agreement") evidencing amendments to other loans made by Mortgagee to
Mortgagor (the "Loans"); and
WHEREAS, Mortgagor has paid NCB all amounts owed under the NCB Note;
and
WHEREAS, Mortgagor has paid Old Kent all amounts owed under the Old
Kent Note; and
8
WHEREAS, Mortgagor and Mortgagee desire that this Mortgage shall serve
as security for the repayment of the Loans; and
WHEREAS, Mortgagor desires that Old Kent release its interests in the
lien of the Mortgage against the Mortgaged Property; and
WHEREAS, Agent is no longer serving as an agent in regard to the Loans;
and
WHEREAS, Mortgagor, Mortgagee, Old Kent and Agent desire to amend the
Mortgage with this Amendment as hereinafter set forth;
NOW THEREFORE, in consideration of the agreements hereinafter set
forth, the parties hereto, intending to be legally bound, agree as follows:
Section 1. Payment of Old Kent. Old Kent hereby acknowledges the
payment in full by Borrower of the Old Kent Note. Old Kent also hereby releases
any and all security interest held by Old Kent in regard to the repayment of the
Old Kent Note including, without limitation, Old Kent's interest in the
Mortgage. Old Kent hereby agrees to execute any and all reasonable documents
necessary to effectuate such payment and release of security interests.
Section 2. Payment of NCB. NCB hereby acknowledges the payment in full
by Borrower of the NCB Note.
Section 3. Release of Agent.Mortgagor, Mortgagee, Old Kent and Agent
hereby agree that the services of Agent under the Loans and this Mortgage are no
longer necessary. Therefore, subject to the terms of the Loan Agreement, Agent
is hereby released from any and all obligations under the Loan, the Loan
Agreement and this Mortgage arising after the date of this Amendment.
Section 4. Partial Release of Mortgage. Pursuant to that certain
Partial Release of Mortgage of even date herewith, Old Kent releases from the
terms of the Mortgage all of Old Kent's interests in the Mortgaged Property.
Section 5. Security/Cross-Collateralization. Mortgagor and Mortgagee
agree that the Mortgage, as amended herein, shall serve as security for (a) the
payment of and performance of Mortgagee under that certain Credit Loan as that
term is defined in the Loan Agreement and (b) the payment of and performance of
Mortgagee under those certain Other Loans as that term is defined in the Loan
Agreement. All references to the Note in the Original Mortgage shall refer to
the Note as defined in the Loan Agreement.
Section 6. Continuing Effect. Except as expressly amended hereby, the
Mortgage remains in full force and effect and is hereby ratified by the parties
in all respects.
9
Section 7. Counterparts. This Amendment may be executed in one or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together constitute one and the same
instrument.
10
IN WITNESS WHEREOF, Mortgagor, Mortgagee, Old Kent and Agent have
executed this Amendment as of the date first written above.
Signed and acknowledged in
in the presence of:
D.I.Y. Home Warehouse, Inc., an Ohio
corporation
/s/ XXXXX XXXXXXXX
--------------------------
Name: Xxxxx Xxxxxxxx
/s/ XXXXXXXX X. XXXXXXX By: /s/ XXXX X. XXXXXXXX
--------------------------- ----------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxxx
Its: V.P. - Chief Financial Officer
National City Bank, a national banking
association
/s/ XXXXXX X. ENGLISH
---------------------------
Name: Xxxxxx X. English
/s/ XXXXX X. XXXXXX By: /s/ XXXXXX XXXXXX
--------------------------- ----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxxx
Its: Vice President
National City Bank, a national banking
association, as Agent
/s/ XXXXXX X. ENGLISH
---------------------------
Name: Xxxxxx X. English
/s/ XXXXX X. XXXXXX By: /s/ XXXXXX XXXXXX
--------------------------- ----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxxx
Its: Vice President
Old Kent Bank, a Michigan banking corporation
/s/ XXX X. XXXXXX
---------------------------
Name: Xxx X. Xxxxxx
/s/ XXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
--------------------------- ----------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Its: Senior Vice President
11
EXHIBIT 10.7 (D) Summit County
AMENDMENT NO. 1 TO OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND
SECURITY AGREEMENT ("Amendment") is made this 28th day of October, 1998 by and
among D.I.Y. HOME WAREHOUSE, INC., an Ohio corporation, with its principal place
of business located at 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxx 00000
("Mortgagor"), NATIONAL CITY BANK, formerly known as National City Bank of
Columbus, a national banking association, with its principal office located at
000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (together with its successors, the
"Mortgagee"), and OLD KENT BANK, formerly known as Old Kent Bank and Trust
Company, a Michigan banking corporation, with its principal office located at
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxx 00000 ("Old Kent"), as lenders
(NCB and Old Kent each herein, separately, called a "Bank" and, collectively,
called the "Banks"), and NCB, as agent for itself and Old Kent (the "Agent").
WITNESSETH:
WHEREAS, Mortgagor executed and delivered to Mortgagee, Old Kent and
Agent an Open-End Mortgage, Assignment of Rents and Security Agreement dated
December 23, 1994 which Open-End Mortgage, Assignment of Rents and Security
Agreement encumbered the land described in the attached Exhibit A (the
"Mortgaged Property") and was recorded on December 27, 1994 in Official Records
Volume 1828, page 670 of the Summit County, Ohio Recorder's Office (the
"Mortgage"); and
WHEREAS, the Mortgage was given to secure the payment of a certain
Mortgage Note dated December 23, 1994 in the original principal amount of
$4,500,000 from Mortgagor to Mortgagee (the "Original Mortgagee Note"); and
WHEREAS, the Mortgage was given to secure the payment of a certain
Mortgage Note dated December 23, 1994 in the original principal amount of
$4,500,000 from Mortgagor to Old Kent (the "Old Kent Note"); and
WHEREAS, Mortgagor has executed and delivered to Mortgagee that certain
First Amendment to Mortgage Note dated as of the date hereof (the "Amended
Mortgagee Note") which amends the Original Mortgagee Note (the Original
Mortgagee Note and the Amended Note are hereinafter collectively referred to as
the "Note"); and
WHEREAS, Mortgagor, Mortgagee, Old Kent and Agent have executed that
certain Fifth Amendment to Loan and Co-Lender Credit Agreement dated of even
date herewith (the "Loan Agreement") evidencing other amendments to the loan
evidenced by the Note (the "Loan"): and
12
WHEREAS, Mortgagor has paid Old Kent all amounts owed under the Old
Kent Note; and
WHEREAS, Mortgagor desires that Old Kent release its interests in the
lien of the Mortgage against the Mortgaged Property; and
WHEREAS, Agent is no longer serving as an agent in regard to the Loan;
and
WHEREAS, Mortgagor, Mortgagee, Old Kent and Agent desire to amend the
Mortgage with this Amendment as hereinafter set forth;
NOW THEREFORE, in consideration of the agreements hereinafter set
forth, the parties hereto, intending to be legally bound, agree as follows:
Section 1. Payment of Old Kent. Old Kent hereby acknowledges the
payment in full by Borrower of the Old Kent Note. Old Kent also hereby releases
any and all security interest held by Old Kent in regard to the repayment of the
Old Kent Note including, without limitation, Old Kent's interest in the
Mortgage. Old Kent hereby agrees to execute any and all reasonable documents
necessary to effectuate such payment and release of security interests.
Section 2. Release of Agent.Mortgagor, Mortgagee, Old Kent and Agent
hereby agree that the services of Agent under the Loan and this Mortgage are no
longer necessary. Therefore, subject to the terms of the Loan Agreement, Agent
is hereby released from any and all obligations under the Loan, the Loan
Agreement and this Mortgage arising after the date of this Amendment.
Section 3. Partial Release of Mortgage. Pursuant to that certain
Partial Release of Mortgage of even date herewith, Old Kent releases from the
terms of the Mortgage all of Old Kent's interests in the Mortgaged Property.
Section 4. Security/Cross-Collateralization. Mortgagor and Mortgagee
agree that the Mortgage, as amended herein, shall serve as security for (a) the
indebtedness represented by the Note, (b) the payment of all sums with interest
thereon advanced to protect the security of the Mortgage or the Note, (c) the
payment of and performance of Mortgagee under that certain Line of Credit Loan
as that term is defined in the Loan Agreement and (d) the payment of and
performance of Mortgagee under those certain Other Loans as that term is defined
in the Loan Agreement. All references to the Note in the Original Mortgage shall
refer to the Note as defined herein.
Section 5. Continuing Effect. Except as expressly amended hereby, the
Mortgage remains in full force and effect and is hereby ratified by the parties
in all respects.
Section 6. Counterparts. This Amendment may be executed in one or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together constitute one and the same
instrument.
13
IN WITNESS WHEREOF, Mortgagor, Mortgagee, Old Kent and Agent have
executed this Amendment as of the date first written above.
Signed and acknowledged in
in the presence of:
D.I.Y. Home Warehouse, Inc., an Ohio
corporation
/s/ XXXXX XXXXXXXX
--------------------------
Name: Xxxxx Xxxxxxxx
/s/ XXXXXXXX X. XXXXXXX By: /s/ XXXX X. XXXXXXXX
--------------------------- ----------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxxx
Its: V.P. - Chief Financial Officer
National City Bank, a national banking
association
/s/ XXXXXX X. ENGLISH
---------------------------
Name: Xxxxxx X. English
/s/ XXXXX X. XXXXXX By: /s/ XXXXXX XXXXXX
--------------------------- ----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxxx
Its: Vice President
National City Bank, a national banking
association, as Agent
/s/ XXXXXX X. ENGLISH
---------------------------
Name: Xxxxxx X. English
/s/ XXXXX X. XXXXXX By: /s/ XXXXXX XXXXXX
--------------------------- ----------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxxx
Its: Vice President
Old Kent Bank, a Michigan banking corporation
/s/ XXX X. XXXXXX
---------------------------
Name: Xxx X. Xxxxxx
/s/ XXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
--------------------------- ----------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Its: Senior Vice President
14
EXHIBIT 10.7 (E) Trumbull County
AMENDMENT NO. 1 TO OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND
SECURITY AGREEMENT ("Amendment") is made this 28th day of October, 1998 by and
among D.I.Y. HOME WAREHOUSE, INC., an Ohio corporation, with its principal place
of business located at 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxx 00000
("Mortgagor"), NATIONAL CITY BANK, formerly known as National City Bank of
Columbus, a national banking association, with its principal office located at
000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (together with its successors, the
"Mortgagee"), and OLD KENT BANK, formerly known as Old Kent Bank and Trust
Company, a Michigan banking corporation, with its principal office located at
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxx 00000 ("Old Kent"), as lenders
(NCB and Old Kent each herein, separately, called a "Bank" and, collectively,
called the "Banks"), and NCB, as agent for itself and Old Kent (the "Agent").
WITNESSETH:
WHEREAS, Mortgagor executed and delivered to Mortgagee, Old Kent and
Agent an Open-End Mortgage, Assignment of Rents and Security Agreement dated
September 15, 1995 which Open-End Mortgage, Assignment of Rents and Security
Agreement encumbered the land described in the attached Exhibit A (the
"Mortgaged Property") and was recorded on September 18, 1995 in Official Records
Volume 960, page 812 of the Trumbull County, Ohio Recorder's Office (the
"Mortgage"); and
WHEREAS, the Mortgage was given to secure the payment of a certain
Mortgage Note dated September 15, 1995 in the original principal amount of
$2,300,000 from Mortgagor to Mortgagee (the "NCB Note"); and
WHEREAS, the Mortgage was given to secure the payment of a certain
Mortgage Note dated September 15, 1995 in the original principal amount of
$2,300,000 from Mortgagor to Old Kent (the "Old Kent Note"); and
WHEREAS, Mortgagor, Mortgagee, Old Kent and Agent have executed that
certain Sixth Amendment to Line of Credit Agreement dated of even date herewith
(the "Loan Agreement") evidencing amendments to other loans made by Mortgagee to
Mortgagor (the "Loans"); and
WHEREAS, Mortgagor has paid NCB all amounts owed under the NCB Note;
and
WHEREAS, Mortgagor has paid Old Kent all amounts owed under the Old
Kent Note; and
15
WHEREAS, Mortgagor and Mortgagee desire that this Mortgage shall serve
as security for the repayment of the Loans; and
WHEREAS, Mortgagor desires that Old Kent release its interests in the
lien of the Mortgage against the Mortgaged Property; and
WHEREAS, Agent is no longer serving as an agent in regard to the Loans;
and
WHEREAS, Mortgagor, Mortgagee, Old Kent and Agent desire to amend the
Mortgage with this Amendment as hereinafter set forth;
NOW THEREFORE, in consideration of the agreements hereinafter set
forth, the parties hereto, intending to be legally bound, agree as follows:
Section 1. Payment of Old Kent. Old Kent hereby acknowledges the
payment in full by Borrower of the Old Kent Note. Old Kent also hereby releases
any and all security interest held by Old Kent in regard to the repayment of the
Old Kent Note including, without limitation, Old Kent's interest in the
Mortgage. Old Kent hereby agrees to execute any and all reasonable documents
necessary to effectuate such payment and release of security interests.
Section 2. Payment of NCB. NCB hereby acknowledges the payment in full
by Borrower of the NCB Note.
Section 3. Release of Agent. Mortgagor, Mortgagee, Old Kent and Agent
hereby agree that the services of Agent under the Loans and this Mortgage are no
longer necessary. Therefore, subject to the terms of the Loan Agreement, Agent
is hereby released from any and all obligations under the Loan, the Loan
Agreement and this Mortgage arising after the date of this Amendment.
Section 4. Partial Release of Mortgage. Pursuant to that certain
Partial Release of Mortgage of even date herewith, Old Kent releases from the
terms of the Mortgage all of Old Kent's interests in the Mortgaged Property.
Section 5. Security/Cross-Collateralization. Mortgagor and Mortgagee
agree that the Mortgage, as amended herein, shall serve as security for (a) the
payment of and performance of Mortgagee under that certain Credit Loan as that
term is defined in the Loan Agreement and (b) the payment of and performance of
Mortgagee under those certain Other Loans as that term is defined in the Loan
Agreement. All references to the Note in the Original Mortgage shall refer to
the Note as defined in the Loan Agreement.
Section 6. Continuing Effect. Except as expressly amended hereby, the
Mortgage remains in full force and effect and is hereby ratified by the parties
in all respects.
16
Section 7. Counterparts. This Amendment may be executed in one or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together constitute one and the same
instrument.
17
IN WITNESS WHEREOF, Mortgagor, Mortgagee, Old Kent and Agent have
executed this Amendment as of the date first written above.
Signed and acknowledged in
in the presence of:
D.I.Y. Home Warehouse, Inc., an Ohio
corporation
/s/ XXXXX XXXXXXXX
--------------------
Name: Xxxxx Xxxxxxxx
/s/ XXXXXXXX X. XXXXXXX By: /s/ XXXX X. XXXXXXXX
------------------------- ------------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxxx
Its: V.P. - Chief Financial Officer
National City Bank, a national banking
association
/s/ XXXXXX X. ENGLISH
-----------------------
Name: Xxxxxx X. English
/s/ XXXXX X. XXXXXX By: /s/ XXXXXX XXXXXX
----------------------- -----------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxxx
Its: Vice President
National City Bank, a national banking
association, as Agent
/s/ XXXXXX X. ENGLISH
-----------------------
Name: Xxxxxx X. English
/s/ XXXXX X. XXXXXX By: /s/ XXXXXX XXXXXX
--------------------- ---------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxxx
Its: Vice President
Old Kent Bank, a Michigan banking corporation
/s/ XXX X. XXXXXX
-------------------
Name: Xxx X. Xxxxxx
/s/ XXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
------------------- ---------------------
Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Its: Senior Vice President
18
EXHIBIT 10.7 (F) Xxxxxx County
AMENDMENT NO. 1 TO OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND
SECURITY AGREEMENT ("Amendment") is made this 28th day of October, 1998 by and
among D.I.Y. HOME WAREHOUSE, INC., an Ohio corporation, with its principal place
of business located at 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxx 00000
("Mortgagor"), NATIONAL CITY BANK, formerly known as National City Bank of
Columbus, a national banking association, with its principal office located at
000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (together with its successors, the
"Mortgagee"), and OLD KENT BANK, formerly known as Old Kent Bank and Trust
Company, a Michigan banking corporation, with its principal office located at
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxx 00000 ("Old Kent"), as lenders
(NCB and Old Kent each herein, separately, called a "Bank" and, collectively,
called the "Banks"), and NCB, as agent for itself and Old Kent (the "Agent").
WITNESSETH:
WHEREAS, Mortgagor executed and delivered to Mortgagee, Old Kent and
Agent an Open-End Mortgage, Assignment of Rents and Security Agreement dated
April 28, 1995 which Open-End Mortgage, Assignment of Rents and Security
Agreement encumbered the land described in the attached Exhibit A (the
"Mortgaged Property") and was recorded on April 28, 1995 in Official Records
Volume 1030, page 175 of the Xxxxxx County, Ohio Recorder's Office (the
"Mortgage"); and
WHEREAS, the Mortgage was given to secure the payment of a certain
Mortgage Note dated April 28, 1995 in the original principal amount of
$1,687,500 from Mortgagor to Mortgagee (the "Original Mortgagee Note"); and
WHEREAS, the Mortgage was given to secure the payment of a certain
Mortgage Note dated April 28, 1995 in the original principal amount of
$1,687,500 from Mortgagor to Old Kent (the "Old Kent Note"); and
WHEREAS, Mortgagor has executed and delivered to Mortgagee that certain
First Amendment to Mortgage Note dated as of the date hereof (the "Amended
Mortgagee Note") which amends the Original Mortgagee Note (the Original
Mortgagee Note and the Amended Note are hereinafter collectively referred to as
the "Note"); and
WHEREAS, Mortgagor, Mortgagee, Old Kent and Agent have executed that
certain Sixth Amendment to Line of Credit Agreement dated of even date herewith
(the "Loan Agreement") evidencing other amendments to the loan evidenced by the
Note (the "Loan"): and
19
WHEREAS, Mortgagor has paid Old Kent all amounts owed under the Old
Kent Note; and
WHEREAS, Mortgagor desires that Old Kent release its interests in the
lien of the Mortgage against the Mortgaged Property; and
WHEREAS, Agent is no longer serving as an agent in regard to the Loan;
and
WHEREAS, Mortgagor, Mortgagee, Old Kent and Agent desire to amend the
Mortgage with this Amendment as hereinafter set forth;
NOW THEREFORE, in consideration of the agreements hereinafter set
forth, the parties hereto, intending to be legally bound, agree as follows:
Section 1. Payment of Old Kent. Old Kent hereby acknowledges the
payment in full by Borrower of the Old Kent Note. Old Kent also hereby releases
any and all security interest held by Old Kent in regard to the repayment of the
Old Kent Note including, without limitation, Old Kent's interest in the
Mortgage. Old Kent hereby agrees to execute any and all reasonable documents
necessary to effectuate such payment and release of security interests.
Section 2. Release of Agent.Mortgagor, Mortgagee, Old Kent and Agent
hereby agree that the services of Agent under the Loan and this Mortgage are no
longer necessary. Therefore, subject to the terms of the Loan Agreement, Agent
is hereby released from any and all obligations under the Loan, the Loan
Agreement and this Mortgage arising after the date of this Amendment.
Section 3. Partial Release of Mortgage. Pursuant to that certain
Partial Release of Mortgage of even date herewith, Old Kent releases from the
terms of the Mortgage all of Old Kent's interests in the Mortgaged Property.
Section 4. Security/Cross-Collateralization. Mortgagor and Mortgagee
agree that the Mortgage, as amended herein, shall serve as security for (a) the
indebtedness represented by the Note, (b) the payment of all sums with interest
thereon advanced to protect the security of the Mortgage or the Note, (c) the
payment of and performance of Mortgagee under that certain Credit Loan as that
term is defined in the Loan Agreement and (d) the payment of and performance of
Mortgagee under those certain Other Loans as that term is defined in the Loan
Agreement. All references to the Note in the Original Mortgage shall refer to
the Note as defined herein.
Section 5. Continuing Effect. Except as expressly amended hereby, the
Mortgage remains in full force and effect and is hereby ratified by the parties
in all respects.
Section 6. Counterparts. This Amendment may be executed in one or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together constitute one and the same
instrument.
20
IN WITNESS WHEREOF, Mortgagor, Mortgagee, Old Kent and Agent have
executed this Amendment as of the date first written above.
Signed and acknowledged in
in the presence of:
D.I.Y. Home Warehouse, Inc., an Ohio
corporation
/s/ XXXXX XXXXXXXX
--------------------
Name: Xxxxx Xxxxxxxx
/s/ XXXXXXXX X. XXXXXXX By: /s/ XXXX X. XXXXXXXX
------------------------- ------------------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxxx
Its: V.P. - Chief Financial Officer
National City Bank, a national banking
association
/s/ XXXXXX X. ENGLISH
-----------------------
Name: Xxxxxx X. English
/s/ XXXXX X. XXXXXX By: /s/ XXXXXX XXXXXX
--------------------- -----------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxxx
Its: Vice President
National City Bank, a national banking
association, as Agent
/s/ XXXXXX X. ENGLISH
-----------------------
Name: Xxxxxx X. English
/s/ XXXXX X. XXXXXX By: /s/ XXXXXX XXXXXX
--------------------- -----------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxxx
Its: Vice President
Old Kent Bank, a Michigan banking corporation
/s/ XXX X. XXXXXX
-------------------
Name: Xxx X. Xxxxxx
/s/ XXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
------------------- ---------------------
Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Its: Senior Vice President
