EXHIBIT 10.12
BUSINESS LOAN AGREEMENT BETWEEN AMERICAN STONE CORPORATION AND
DOLLAR BANK, FEDERAL SAVINGS BANK, DATED FEBRUARY 16, 2001 AND
ANCILLARY DOCUMENTS INCLUDING SUBORDINATION AGREEMENT, SECURITY
AGREEMENT, MORTGAGES, NOTES AND GUARANTY.
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DOLLAR BANK
LOAN AGREEMENT
THIS AGREEMENT MADE as of the 16th day of February , 2001, by and between
AMERICAN STONE CORPORATION, a Delaware corporation with its principal place of
business at 0000 Xxxxxx Xxxx, Xxxxxxx, Xxxx 00000 (the "Borrower") and DOLLAR
BANK, FEDERAL SAVINGS BANK, with offices at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxx 00000 (the "Bank").
WHEREAS, Borrower has applied to the Bank for a $900,000 Term Loan
(the "Term Loan"), and a $500,000 Line of Credit Loan (the "Line of Credit
Loan"), and Bank is willing to provide such credit facility to Borrower on the
terms set forth herein.
NOW THEREFORE, the parties hereto hereby agree as follows:
1. THE LOAN. Bank agrees to loan to Borrower up to the total principal
amount of One Million Four Hundred Thousand Dollars ($1,400,000) on the basis
designated in the preamble hereto (the "Loan"). The Loan is evidenced by the
notes described more fully below executed and delivered by Borrower to Bank and
bearing even date herewith (collectively, the "Notes"). Borrower has executed
and delivered, to Bank, at or before the time of execution hereof, the related
documents (the "Related Documents") listed in Section 1 of the schedule
("Schedule") annexed hereto. The terms and provisions of the Notes and each of
the Related Documents executed by Borrower are hereby incorporated herein by
reference.
2. ADVANCES AND REPAYMENT. Advances and repayments of the Loan shall be as
follows:
(a) TERM LOAN. The amount of the Term Loan shall be advanced to or
for the account of Borrower as set forth in the note executed and
delivered in connection herewith evidencing the Term Loan (the "Term
Note"). Term Loan principal shall bear interest and shall be due and
payable as set forth in the Term Note.
(b) LINE OF CREDIT. Loan principal on the Line of Credit shall bear
interest and shall be due and payable as set forth in the note executed
and delivered in connection herewith evidencing the Line of Credit (the
"Line of Credit Note"). The Borrower may borrow, repay and reborrow
amounts hereunder provided that the aggregate principal amount outstanding
shall not at any time exceed the lesser of (i) $500,000 or (ii) the
Borrowing Base. For the purposes of this Agreement, the "Borrowing Base"
shall mean the sum of (i) 75% of the Borrower's accounts receivable that
are less than 90 days past the invoice date, and (ii) 30% of the
Borrower's inventory, with the amount borrowed against inventory not to
exceed $250,000. ADVANCES OF LINE OF CREDIT LOAN PRINCIPAL ARE AT THE
BANK'S SOLE DISCRETION, AND BANK MAY ELECT TO MAKE OR DECLINE TO MAKE ANY
ADVANCE REQUESTED BY BORROWER.
3. REPRESENTATIONS. The Borrower hereby represents to the Bank that:
(a) TRADE NAMES. The Borrower is doing business under the name set
forth at the beginning of the Agreement and does not use any other trade
names except those, if any, set forth in Section 2 of the Schedule. Any
assumed or fictitious name registration required by law has been
accomplished. Borrower will notify Bank in writing at least thirty (30)
days prior to any change in its name.
(b) [Intentionally omitted.]
(c) ORGANIZATION, EXISTENCE, POWER. The Borrower is a corporation,
has complied with all applicable filing requirements of all applicable
laws, is duly formed, validly existing and in good standing under the laws
of the State of Ohio. The Borrower is duly qualified to transact business
or own real property in each state or other jurisdiction in which it
conducts any important or material part of its business or in which its
principal real properties are located.
(d) AUTHORITY, BINDING EFFECT. The execution, delivery and
performance of this Agreement, the Notes and the Related Documents have
been duly authorized by all necessary limited liability company action,
will not violate any provision of law, will not violate or conflict with
any provision of its operating agreement or other organizational
documents, or result in a breach of or constitute a default under, or
result in a lien, charge or encumbrance up on any property or assets of
the Borrower pursuant to any agreement or instrument to which the Borrower
is a party or by which the Borrower or its property may be bound or
affected. This Agreement, the Notes and the Related Documents, when
executed by Borrower and delivered to the Bank, will constitute legal,
valid and binding obligations of the Borrower, enforceable in accordance
with their respective terms.
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(e) FINANCIAL CONDITION. The Borrower has furnished to the Bank its
most current financial statements, which statements represent correctly
and fairly the results of the operations and transactions of the Borrower
as of the dates and for the periods referred to and have been prepared in
accordance with generally accepted accounting principles consistently
applied during each interval involved and from period to period. From the
date of such financial statements to the date of the execution of this
Agreement, there have not been any material adverse changes in the
financial condition of the Borrower.
(f) TAXES. The Borrower has duly filed all federal, state and other
tax returns required to be filed and has duly paid all taxes required by
such returns. The Borrower has not received any notice from the Internal
Revenue Service or any other taxing authority relating to the payment of
additional taxes (including interest and penalties) in excess of $10,000.
(g) ERISA. All of Borrower's Defined Benefit Pension Plans, as
defined in the Employment Retirement Income Security Act of 1974
("ERISA"), as amended, meet, as of the date hereof, the minimum funding
standards of Section 302 of ERISA, and, with respect to all of Borrower's
Employee Benefit Plans, as defined in ERISA, no Reportable Event or
Prohibited Transaction (as defined in ERISA) has occurred, except only
such events or transactions as have been previously reported to the Bank
in writing.
(h) LITIGATION. There is no pending or threatened action or
proceeding against or affecting Borrower before any court, governmental
agency or arbitrator which is not covered by insurance that could result
in payment of $10,000.00 or more if adversely determined.
(i) YEAR 2000 PROBLEM. The "Year 2000 Problem" shall mean any
significant risk that computer hardware, software or equipment used in the
business or operations of the Borrower may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior to
and after December 31, 1999. Borrower has reviewed its business and
operations with a view to assessing whether the Borrower has been or will
be vulnerable to the Year 2000 Problem. Based on such review, the Borrower
has not been and will not be vulnerable to the Year 2000 Problem and
Borrower has taken or is taking all action necessary to address the Year
2000 Problem.
(j) USE OF PROCEEDS. The proceeds of the Loans will be used solely:
(i) to refinance existing indebtedness to First Merit Bank; and (ii) to
provide short term working capital in the normal course of business of the
Borrower.
4. CONDITIONS PRECEDENT. The obligation of the Bank to make the Loan is
subject to the following conditions precedent:
(a) The Bank shall have received a certified copy of all corporate
action taken by the Borrower to authorize the execution, delivery and
performance of this Agreement, the Notes, the Related Documents (as
applicable) and the borrowing by it hereunder, all of which shall be
subject to Bank's approval.
(b) [Intentionally omitted.]
(c) With respect to subsequent advances under the Line of Credit, it
shall be a condition precedent that no event of default specified in
Paragraph 7 hereof, and no event which, with the giving of notice or lapse
of time or both, would become such an event of default, shall have
occurred and be continuing.
(d) With respect to subsequent advances under the Line of Credit, a
request for an advance shall constitute an affirmation by the Borrower
that the representations made in Paragraph 3 hereof are and shall be true
on and as of the date of the making of each such advance, with the same
force and effect as if made on and as of such date.
(e) All legal matters incident to the transaction hereby
contemplated shall be satisfactory to the Bank and its counsel.
(f) The Bank shall have received from the Borrower the commitment
fee pursuant to the Proposal Letter dated November 30, 2000.
5. AFFIRMATIVE COVENANTS. So long as any lending arrangement of the Bank
shall be outstanding, and until payment in full of the Notes and the performance
of all other obligations of the Borrower hereunder and under any and all Related
Documents, the Borrower will comply with additional covenants contained in
Section 5(a) of the Schedule, and the Borrower shall:
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(a) FURNISH FINANCIAL STATEMENTS. The Borrower will furnish the
Bank:
(1) within 120 days after the end of each fiscal year of the
Borrower, copies of balance sheets of the Borrower and Guarantor as
at the close of such fiscal year and statements of income and
retained earnings of the Borrower and Guarantor for such year, which
shall be audited by independent certified public accountants
selected by the Borrower and satisfactory to the Bank.
(2) within 45 days after the end of each fiscal quarter of the
Borrower and Guarantor, copies of balance sheets of the Borrower and
Guarantor as of the end of such quarter and statements of income and
retained earnings of the Borrower and Guarantor for the period from
the beginning of the fiscal year to the end of such quarter, in each
case certified by an authorized financial or accounting officer of
the Borrower and Guarantor, respectively;
(3) within 120 days after the end of each fiscal year of the
Borrower, a certificate of such independent public accountants, and
within 45 days after the end of each fiscal quarter of the Borrower
a certificate of an authorized financial or accounting officer,
general partner or the sole proprietor, as applicable, of the
Borrower, in each case as to whether any event of default specified
in Paragraph 7, or any event which, with the giving of notice or
lapse of time or both, would become an event of default, has
occurred and is continuing;
(4) within 15 days of the end of each calendar month, a borrowing
base certificate setting forth the Borrower's accounts receivable
and inventory, all in reasonable detail and satisfactory to the Bank
in its sole discretion.
(5) from time to time, such further information regarding the
business affairs and financial condition of the Borrower as the Bank
may request.
All financial statements delivered hereunder shall be prepared on the
basis of generally accepted accounting principles and practices applied on
a basis consistent with those used in the preparation of the financial
statements of the Borrower referred to above.
(b) TAXES. Borrower shall promptly pay and discharge all of its
taxes, assessments, and other governmental charges prior to the date on
which penalties are attached thereto; establish adequate reserves for the
payment of taxes and assessments and make all required withholding and
other tax deposits; provided, however, that nothing contained herein shall
require the payment of any tax, assessment, or charge so long as its
validity is being contested in good faith by appropriate proceedings
diligently conducted unless and until foreclosure, distraint, sale or
other similar proceedings shall have been commenced.
(c) INSURANCE. Borrower shall keep all its property insured at all
times with insurance carriers acceptable to Bank against fire, theft, and
other risks, in coverage, form and amount satisfactory to the Bank and see
that all policies covering property given as security for the Loan have
loss payable and additional insured clauses in favor of the Bank in form
and substance satisfactory to the Bank;
(d) LITIGATION. Borrower shall promptly notify the Bank in writing
as soon as the Borrower has knowledge of any threatened or pending
litigation or governmental or regulatory proceeding against, or
investigation of, the Borrower, the outcome of which may have a material
or adverse affect on the finances or operations of the Borrower;
(e) EXPENSES. Borrower shall pay or reimburse the Bank for all
out-of-pocket expenses that the Bank may incur in connection with this
Agreement, in the making of any loans hereunder, or the collection of the
indebtedness created hereunder, including but not limited to attorney's
fees;
(f) LICENSING BUSINESS. Borrower Shall (1) remain or become and
remain duly licensed or qualified in each jurisdiction in which the
conduct of its business or ownership of its property requires such
qualification or licensing; and (2) engage only in the business(es)
conducted by it on the date of this Agreement;
(g) DEBT COVERAGE RATIO. Borrower shall maintain a ratio of net
income plus depreciation and amortization expense minus dividends,
distributions, and unfunded capital expenditures to current maturities of
long term debt of at least 1.0 to 1.0 (each as determined in accordance
with generally accepted accounting principles consistently applied) to be
measured quarterly on a rolling four-quarter basis. The Borrower shall
provide to the Bank evidence of compliance with this provision no less
frequently than quarterly, and at other times as reasonably requested by
the Bank;
(h) LEVERAGE RATIO. Borrower will maintain a ratio of total
liabilities to tangible net worth of not greater than 1.0 to 1.0. For
purposes of this calculation, total liabilities shall exclude liabilities
subordinated to the Bank and tangible net worth shall
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include liabilities subordinated to the Bank. The Borrower shall provide
to the Bank evidence of compliance with this provision no less frequently
than quarterly, and at other times as reasonably requested by the Bank;
(i) BOOKS AND RECORDS. Borrower shall (1) keep proper books and
records; (2) notify the Bank promptly in writing of any proposed change in
the location where such books and records are maintained; and (3) permit
the Bank, at any time and from time to time, to examine such books and
records and to make copies thereof;
(j) ERISA COMPLIANCE. Borrower shall (1) fund all its Pension Plans
in accordance with the minimum funding standards required under ERISA, (2)
furnish the Bank, if requested, promptly after the filing of the same,
with copies of all reports or other statements filed with the United
States Department of Labor or the Internal Revenue Service with respect to
all Employee Benefit Plans, and (3) promptly advise the Bank of the
occurrence of any Reportable Event or Prohibited Transaction as defined in
ERISA with respect to any of the Borrower's Employee Benefit Plans.
(k) YEAR 2000 PROBLEM. Borrower shall take all action necessary to
assure that Borrower will not be vulnerable to the Year 2000 Problem and
shall commit adequate resources to address the Year 2000 Problem. At the
request of the Bank, Borrower shall furnish the Bank with assurance
reasonably acceptable to the Bank of the Borrower's capability with
respect to addressing the Year 2000 Problem including, but not limited to,
Borrower's plans, updates on the Borrower's progress, and any third party
assessment of the Borrower's efforts;
(l) DEPOSITORY. The Borrower shall maintain its primary depository
account with the Bank. The Borrower shall not maintain any other accounts
with any other depository financial institution without the prior written
consent of the Bank.
6. NEGATIVE COVENANTS. So long as any lending arrangement of the Bank
shall be outstanding, and until payment in full of the Note and the performance
of all other obligations of the Borrower hereunder and under any and all Related
Documents, and the Borrower shall not:
(a) BORROWED MONEY. Create or assume any obligation for money
borrowed other than from the Bank or as may be specified in Section 6 of
the Schedule;
(b) ENCUMBRANCES. Create or suffer to exist any mortgage, lien,
security interest, pledge or other encumbrance on any of its property or
assets, whether now owned or hereafter acquired, except (1) for taxes not
delinquent or being contested in good faith, (2) resulting from deposits
to secure payments of workers' compensation or other social security
obligations or to secure the performance of bids or contracts in the
ordinary course of business, (3) in favor of the Bank, and (4) as may be
specified in Section 7 of the Schedule.
(c) GUARANTIES. Become a guarantor, surety or otherwise liable for
the obligations of any other person, firm, or corporation, except that the
Borrower may endorse checks or other instruments for deposit or collection
in the ordinary course of business.
(d) SALE OF ASSETS. Convey, sell, transfer, lease or sell and lease
back any of its property, assets, or business in any fiscal year in excess
of 10% of its assets at the start of such fiscal year, except for
inventory disposed of in the ordinary course of business.
(e) INVESTMENTS AND LOANS. Make or suffer to exist any investments
in or loan or advances to any other person, firm or corporation, except
commercial paper rated P-1 and A-1+ by Xxxxx'x and Standard & Poor's
respectively, direct obligations of the United States government and its
agencies, and obligations of the Bank.
(f) MERGERS. Merge or consolidate with or into any other firm or
corporation or enter into any joint venture or partnership with any other
person, firm or corporation.
(g) COMPENSATION. Permit any withdrawals from or distribution of the
assets of the Borrower except as reasonable compensation for services
actually rendered, and such further payments in cash or in kind, including
without limitation dividends (except stock dividends), withdrawals,
distributions, salary, compensation, and bonuses shall be limited to
$50,000.00 in each of the Borrower's fiscal years.
(h) LEASES. At any time enter into or suffer to exist any agreement
to lease, as lessee, any real or personal property, except leases in
effect as of the date hereof and leases having aggregate annual rental
payments of not more than $50,000.00.
7. DEFAULTS; REMEDIES. The occurrence of any one or more of the Additional
Events of Default set forth in Section 9 of the Schedule or any of the following
events shall be an event of default:
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(a) MISREPRESENTATION. If any representation or warranty made by the
Borrower in this Agreement, in any Related Document or in any other
writing delivered by Borrower to Bank in connection with the Loan shall
prove to have been untrue or materially misleading;
(b) NONPAYMENT. If the Borrower shall fail to pay when due any
principal of, or interest on, the Loan or the Note or any other sum
payable by the Borrower under this Agreement or the Related Documents;
(c) OTHER OBLIGATIONS. If the Borrower shall default in the payment
or performance of any debt or obligation to any person or entity other
than Bank;
(d) COVENANTS. Failure to observe or perform any covenants or
obligations (other than payment obligations) contained herein or in the
Related Documents which failure is not remedied within twenty (20) days
after notice thereof from the Bank.
(e) DEATH, DISSOLUTION. If Borrower is a proprietorship, death of
Borrower; if Borrower is a partnership, death of a partner; if Borrower or
any guarantor is a corporation or limited liability company, dissolution
or termination of Borrower or such guarantor or the filing or commencement
of any proceeding by or against Borrower or any guarantor for such
dissolution or termination; death of any guarantor named in Section 10 of
the schedule, or failure of Borrower to continue to operate as a going
concern;
(f) INSOLVENCY, RECEIVERSHIP; BANKRUPTCY. Borrower or any guarantor
of the Loan shall (1) apply for or consent to the appointment of a
receiver, trustee, or liquidator for itself, or of all or a substantial or
material part of its assets, (2) be unable, or admit in writing its
inability to pay its debts as they fall due, (3) make a general assignment
for the benefit of creditors, (4) be adjudicated a bankrupt or insolvent,
(5) file a voluntary petition in bankruptcy or a petition or any answer
seeking reorganization or an arrangement with creditors or to take
advantage of any insolvency law, (6) file any answer admitting the
material allegations of a petition filed against it in any bankruptcy,
reorganization or insolvency proceeding, (7) take any action for the
purpose of effecting any of the foregoing, (8) have an order, judgment, or
decree entered against it by any court of competent jurisdiction approving
a petition seeking its reorganization or appointing a receiver, trustee or
liquidator for it or of all or a substantial or material part of its
assets, or (9) have a petition filed against Borrower or any such
guarantor in bankruptcy or seeking reorganization or an arrangement with
creditors or under any other insolvency law which shall continue
undismissed for a period of more than thirty (30) consecutive days;
(g) DEFAULT UNDER OTHER DOCUMENTS. The occurrence of an event of
default under any of the Related Documents;
(h) ADVERSE CHANGE IN BUSINESS. A determination by Bank, which
determination shall be conclusive if made in good faith, that a material
adverse change has occurred in the financial or business condition of the
Borrower, or Bank reasonably deems itself insecure;
then and in any such case, the Bank may, in addition to other remedies available
to it hereunder, under the Related Documents, at law, in equity or otherwise, by
written notice to the Borrower immediately terminate any commitment to make
advances to the Borrower and/or declare the principal and interest due on the
Note, together with all other sums then due and payable by the Borrower
hereunder, under the Note and under the Related Documents, to be forthwith due
and payable whereupon the same shall become forthwith due and payable; provided,
however, that upon the occurrence of any event of default described in
subparagraph (f) of this Section 7, such commitment shall be automatically
terminated and such obligations shall automatically become immediately due and
payable without presentment, demand, protest or notice of any kind, all of which
are hereby expressly waived by Borrower.
8. SET-OFF. Bank shall have the right to set-off, without notice to
Borrower, any and all deposits or other sums at any time or times credited by or
due from Bank to Borrower, whether in a special account or other account or
represented by a certificate of deposit (whether or not matured), which deposits
and other sums shall at all times constitute additional security for the amounts
owed Bank by Borrower and may be set-off against all or any part of the
Borrower's obligations to Bank at any time.
9. MISCELLANEOUS.
(a) CONSOLIDATED SUBSIDIARY. The term "Consolidated Subsidiary" as
used in this Agreement means any corporation of which at least 50% of the
voting stock is owned by the Borrower directly or indirectly.
(b) AMENDMENTS AND WAIVERS. No waiver hereunder or amendment hereto
shall be effective unless in writing signed by the Borrower or a duly
authorized officer or general partner of the Borrower, as appropriate, and
a duly authorized officer of the Bank.
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(c) TERMINATION; BINDING EFFECT. This Agreement will terminate when
all obligations of the Borrower to the Bank hereunder, under the Note and
under the Related Documents have been paid or otherwise satisfied in full;
the provisions hereof shall be binding on and inure to the benefit of the
heirs, executors, successors, and assigns of the parties hereto, provided,
however, that the Borrower may not assign any of its rights or delegate
any of its duties hereunder without the prior written consent of the Bank.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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(d) NOTICES. Any notice or demand to be given hereunder shall be
duly given if delivered or mailed to the Borrower or the Bank at the
address specified at the beginning of this Agreement or such other address
as the parties may designate in writing for the receipt of notices, and
shall be deemed given upon delivery if hand delivered and, if mailed,
shall be deemed given two (2) business days after deposit with postage
paid in an official depository maintained by the United States Postal
Service for the collection of mail.
(e) GOVERNING LAW. This Agreement shall be construed and interpreted
in accordance with, and governed by, the laws of the State of Ohio
(without regard to its conflicts of laws principles).
IN WITNESS WHEREOF, THE PARTIES HERETO have signed this Agreement on the
date written above, intending to be legally bound.
DOLLAR BANK, FEDERAL SAVINGS BANK
By /s/ Xxxxxxxx Xxxxx
--------------------------------------
Name Xxxxxxxx Xxxxx
------------------------------------
Title Assistant Vice President
-----------------------------------
AMERICAN STONE CORPORATION
By /s/ Xxxxx X. Xxxxx
--------------------------------------
Name Xxxxx X. Xxxxx
------------------------------------
Title President
-----------------------------------
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Schedule
To
Loan Agreement
With
AMERICAN STONE CORPORATION
Dated February 16 , 2001
SECTION 1. RELATED DOCUMENTS
Promissory Notes Dated February 16, 2001;
Security Agreement Dated February 16, 2001 by and between the
Borrower and the Bank;
Mortgages Dated February 16, 2001 by and between the Borrower and
the Bank;
Guaranty Agreement Dated February 16, 2001 by and between the
Guarantor and the Bank;
Subordination Agreement Dated February 16, 2001 by and between the
Borrower and the Guarantor;
Section 2. All Trade, Assumed or Fictitious Names:
Cleveland Quarries
Section 6. Permitted Borrowings:
Section 7. Permitted Encumbrances:
Section 8. Compensation:
Section 9. Additional Events of Default:
Section 10. Guarantors/Sureties:
American Stone Industries, Inc.
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DOLLAR BANK
SUBORDINATION AGREEMENT
CLEVELAND, OHIO
February 16, 2001
We, the undersigned creditor(s) of AMERICAN STONE CORPORATION
(hereinafter referred to as "Borrower"), in the amount shown in the attached
Schedule "A", know that Borrower desires to obtain credit accommodation from
DOLLAR BANK, FEDERAL SAVINGS BANK, with offices at 0000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000 (hereinafter referred to as "Bank"), and that Bank is
willing to extend credit accommodation to Borrower from time to time in such
amounts as Bank deems advisable, provided the Subordination Agreement herein set
forth shall be and remain in effect. To induce Bank to give such credit
accommodation to Borrower, the undersigned agree(s) that:
(1) Any indebtedness now existing or hereafter contracted and owing by Borrower
to Bank, notice of the creation, existence, extension and renewal of such
indebtedness being hereby waived by the undersigned, shall be paid prior to
payment of any part of any and all indebtedness, now existing or hereafter
contracted and owing by Borrower to the undersigned, and that the undersigned
shall receive no security from Borrower for such indebtedness to the
undersigned, nor any loans, advances or gifts from Borrower so long as Borrower
shall be indebted to Bank. Bank may release, sell or exchange any other security
Bank may hold against Borrower's indebtedness, and otherwise deal freely with
the Borrower, all without notice to or consent from the undersigned and without
affecting the liabilities and obligation of the undersigned under this
Agreement.
(2) All such indebtedness of Borrower to the undersigned now existing is hereby
assigned to Bank as security for the payment of all such indebtedness of
Borrower to Bank and nothing in this Agreement provided shall by implication
diminish the effect of the assignment contained in this paragraph.
(3) All such indebtedness of Borrower to the undersigned hereafter contracted
will be assigned to Bank in writing as such new debt comes into existence. The
undersigned agree(s) to notify Bank in writing prior to the actual creation of
any such additional debt.
(4) None of the undersigned will commence, or join with any other creditor in
commencing, any bankruptcy, reorganization or insolvency proceeding against the
Borrower.
(5) In any proceeding relating to the financial distress of the Borrower, Bank
shall have the right, but not the duty, to file any proof of claim on behalf of
the undersigned and to vote the full amount of the subordinated debt, whether in
bankruptcy, reorganization or other similar proceeding, including any meeting of
creditors of the Borrower.
(6) Any notes or other evidence of indebtedness which have been or shall be
issued to the undersigned by the Borrower shall be deposited with Bank or shall
be endorsed with a memo reading "Payment of this instrument is subordinated to
all debts now or hereafter owed by maker to DOLLAR BANK, FEDERAL SAVINGS BANK."
If no evidence of indebtedness is or shall be issued, an entry will be made
immediately next to the entry of such indebtedness, both on the books of
Borrower and of the undersigned, reading: "Payment subordinated to debts due to
DOLLAR BANK, FEDERAL SAVINGS BANK."
(7) The undersigned shall not take any security for the debt hereby
subordinated, except with Bank written consent; and in which case, should any
security be so taken, any payments on the debt herein subordinated, out of the
proceeds of such security, shall be treated as if made out of the general assets
of the Borrower.
(8) No transfer, assignment or pledge of the debt herein subordinated shall be
made by the undersigned.
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(9) The undersigned hereby agree(s) not to waive, forgive or cancel any part or
all of the Borrower's indebtedness to the undersigned which is or shall be
subordinated pursuant to the provisions of this Agreement without Bank's written
consent.
Upon any breach of this Agreement by any of the undersigned or
Borrower, all indebtedness then owing by Borrower to Bank shall, at Bank's
option, become due and payable at once. Any payments or security received by the
undersigned in violation of this Agreement shall be held by the undersigned in
trust for Bank and shall be paid or delivered over to Bank upon demand. Waiver
of earlier breaches by Bank shall not be construed as a waiver of any later
breach. This Agreement shall remain in full force and effect until written
notice of its termination shall be given by the undersigned to Bank President,
and any such termination shall in no manner impair or affect the liability then
existing to Bank hereunder, or the priority of any claim held by Bank against
the Borrower at the time of such termination.
Expressly excepted from this Subordination Agreement are the
payments listed on the attached Schedule "B" as exceptions, if any.
Borrower joins in the foregoing Agreement, which shall be
binding upon all parties hereto, their heirs, executors, administrators,
successors or assigns.
AMERICAN STONE CORPORATION AMERICAN STONE INDUSTRIES, INC.
(Borrower) (Creditor)
By /s/ Xxxxx X. Xxxxx By /s/ Xxxxx X. Xxxxx
------------------------------ --------------------------------
Name Xxxxx X. Xxxxx Name Xxxxx X. Xxxxx
---------------------------- ------------------------------
Title President Title President
--------------------------- -----------------------------
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SCHEDULE "A"
Payee's Name: Amount:
------------- -------
American Stone Industries, Inc. $2,283,479.00
SCHEDULE "B"
Exceptions
NONE.
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DOLLAR BANK
SECURITY AGREEMENT
RECEIVABLES AND/OR INVENTORY AND/OR EQUIPMENT
THIS AGREEMENT, dated as of the Date of Agreement set forth below, entered into
by and between DOLLAR BANK, FEDERAL SAVINGS BANK ("Bank"), the office of which
for purposes hereof is set forth below, and the borrower (the "Borrower")
identified below.
In consideration of any loan made or to be made by Bank to Borrower and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
When used herein, the terms set forth below shall be defined as follows:
1.1. "Date of Agreement" is: February 16, 2001.
1.2. "Borrower" means American Stone Corporation, a Delaware corporation.
1.3. "Borrower's Address" is: 0000 Xxxxxx Xxxx, Xxxxxxx, Xxxx 00000.
1.4. "Bank's Address" is: 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000
1.5. "Accounts Receivable" shall mean any "account," as such term is defined in
Section 9-106 of the UCC, now or hereafter owned by the Borrower, and shall also
mean and include any right of the Borrower to payment for goods sold or leased
or for services rendered which the Borrower may now have or hereafter acquire,
whether or not such right has been earned by performance, including, without
limitation, all accounts, accounts receivable, book debts, instruments and
chattel paper, notes, drafts, acceptances, bills of exchange, health insurance
receivables, letters of credit, payments under leases of Equipment, sale of
Inventory or Contracts and other forms of obligations now or hereafter received
by or belonging or owing to the Borrower for goods sold or leased and/or
services rendered by the Borrower or from any other transaction, whether or not
the same involves the sale of goods or services by the Borrower (including,
without limitation, any such obligation which might be characterized as an
account or contract right under the UCC), and all of the Borrower's rights in,
to and under all purchase orders, receipts, instruments, and other documents or
instruments now or hereafter received by it evidencing obligations for and
representing payment for goods sold or leased and/or services rendered, and all
of the Borrower's rights to goods represented by any of the foregoing
(including, without limitation, unpaid seller's rights of rescission, replevin,
reclamation and stoppage in transit and rights to returned, reclaimed or
repossessed goods), and all monies due or to become due to the Borrower under
all contracts for the sale or lease of goods and/or the performance of services
by it (whether or not yet earned by performance on the part of the Borrower or
in connection with any other transaction), now in existence or hereafter
arising, including without limitation the right to receive the proceeds of said
purchase orders and contracts, and all collateral security and guarantees of any
kind given by any person with respect to any of the foregoing.
1.6. "Chattel Paper": shall mean any "chattel paper", as such term is defined in
Section 9-105(1)(b) of the UCC, including but not limited to electronic chattel
papers, now owned or hereafter acquired by the Borrower.
1.7. "Contracts" shall be the collective reference to all contracts,
undertakings, or other agreements (other than rights evidenced by Chattel Paper,
Documents or Instruments) in or under which the Borrower may now or hereafter
have any right, title or interest, including, without limitation, with respect
to an Account Receivable, any agreement relating to the terms of payment or the
terms of performance thereof, in each case as the same may from time to time be
amended or supplemented.
1.8. "Copyright License" shall mean any written agreement granting any right in
any copyright, copyrightable work or copyright registration, as the same may
from time to time be amended or supplemented.
1.9. "Copyrights" shall mean all of the following now owned or hereafter
acquired by the Borrower: (i) all copyrights and copyrightable works now
existing or hereafter adopted or acquired, all registrations and recordings
thereof, and all applications in connection therewith, including, without
limitation, registrations, recordings and applications in the United States
Copyright Office or in any similar office or agency of the United States or any
other country or any political subdivision thereof, and (ii) all renewals
thereof.
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1.10. "Documents" shall mean all "documents", as such term is defined in Section
9-105(1)(f) of the UCC, now owned or hereafter acquired by the Borrower.
1.11. "Equipment" shall mean any "equipment", as such term is defined in Section
9-109(2) of the UCC, now or hereafter owned by the Borrower and shall also mean
and include all machinery, equipment, furnishings and fixtures now owned or
hereafter acquired by the Borrower, including, without limitation, all items of
machinery and equipment of any kind, nature, and description, whether affixed to
real property or not, as well as trucks and vehicles of every description,
trailers, handling and delivery equipment, computers and related equipment,
communication equipment, office equipment of every type, fixtures and office
furniture, as well as all additions to, substitutions for, replacements of or
accessions to any of the items recited as aforesaid and all attachments,
components, parts (including spare parts) and accessories whether installed
thereon or affixed thereto and all fuel for any thereof; without limiting the
foregoing, the term Equipment shall include all Equipment listed on any schedule
attached hereto.
1.12. "Escrow Collateral" shall mean amounts placed into escrow by, or for the
benefit of, any Assignor or to which any Assignor retains any interest
whatsoever, contingent or otherwise, together with any investments made with
such funds and all earnings and proceeds thereof.
1.13. "Instruments" shall mean any "instrument", as such term is defined in
Section 9-105(1)(i) of the UCC, now owned or hereafter acquired by the Borrower,
other than instruments that constitute, or are a part of a group of writings
that constitute, Chattel Paper.
1.14. "Intangible Assets" shall mean any "general intangibles", as such term is
defined in Section 9-106 of the UCC, now owned or hereafter acquired by the
Borrower and, in any event, shall include, without limitation, all right, title
and interest which the Borrower may now or hereafter have in or under all
permits, franchises, authorizations, licenses and similar rights issued to or
for the benefit of the Borrower by any governmental authority or other person,
and all Contracts, customer lists, deposit accounts, commercial tort claims,
investment property, payment intangibles, Trademarks, Patents, rights in
intellectual property, Licenses, Copyrights, trade secrets, proprietary or
confidential information, inventions (whether patented or patentable or not),
technical information, procedures, designs, knowledge, know-how, software, data
bases, data, skill, expertise, experience, processes, models, drawings,
materials and records, goodwill and rights of indemnification, now owned or
hereafter acquired by the Borrower.
1.15. "Inventory" shall mean any "inventory", as such term is defined in Section
9-109(4) of the UCC, now or hereafter owned by the Borrower, and shall also mean
and include all inventory, wherever located, now owned or hereafter acquired by
the Borrower or in which the Borrower now have or hereafter may acquire any
right, title or interest, including, without limitation, all goods and other
personal property now or hereafter owned by the Borrower which are held for sale
or lease or are furnished or are to be furnished under a contract of service or
which constitute raw materials, work in process, finished goods or materials
used or consumed or to be used or consumed in the Borrower's business, or in the
manufacturing, assembly, processing, packaging, storage, display or shipping of
the same; without limiting the foregoing, the term Inventory shall include all
Inventory listed on any schedule attached hereto.
1.16. "License" shall mean any Patent License, Trademark License, Copyright
License or other license as to which the Bank has been granted a security
interest hereunder, as the same may from time to time be amended or
supplemented.
1.17. "Motor Vehicles" shall mean any and all motor vehicles, including cars,
trucks, passenger vehicles, trailers and similar vehicles subject to applicable
laws regarding registration and titling whether now owned or hereafter acquired.
1.18. "Patent License" shall mean any written agreement granting any right to
practice any invention on which a Patent is in existence, as the same may from
time to time be amended or supplemented.
1.19. "Patents" shall mean all of the following now or hereafter owned by the
Borrower: (i) all letters patent of the United States or any other country, all
registrations and recordings thereof, and all applications for letters patent of
the United States or any other country, including, without limitation,
registrations, recordings and applications in the United States Patent and
Trademark Office or in any similar office or agency of the United States, any
State thereof or any other country, and (ii) all reissues, continuations,
continuations-in-part or extensions thereof.
1.20. "Proceeds" shall mean "proceeds", as such term is defined in Section
9-306(1) of the UCC and, in any event, shall include, without limitation, (i)
any and all proceeds of any insurance, indemnity, warranty or guaranty payable
to
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the Borrower from time to time with respect to any of the Collateral, (ii) any
and all payments (in any form whatsoever) made or due and payable to the
Borrower from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral by any
governmental body, authority, bureau or agency (or any person acting under color
of governmental authority), (iii) any claim of the Borrower against third
parties (A) for past, present or future infringement of any Copyright, Copyright
License, Patent or Patent License or (B) for past, present or future
infringement or dilution of any Trademark or Trademark License or for injury to
the goodwill associated with any Trademark, Trademark registration or Trademark
licensed under any Trademark License, and (iv) any and all other amounts from
time to time paid or payable under or in connection with any of the Collateral.
1.21. "Receivables" means all Accounts Receivable, Contract Rights, Instruments,
Documents, Chattel Paper, Intangible Assets (including, without limitation,
choses in action, tax refunds, and insurance proceeds); any other obligations or
indebtedness owed to Borrower from whatever source arising; all rights of
Borrower to receive any payments in money or kind; all guarantees of Receivables
and security therefor; all cash or non-cash proceeds of all of the foregoing;
all of the right, title and interest of Borrower in and with respect to the
goods, services or other property which gave rise to or which secure any of the
Receivables and insurance policies and proceeds relating thereto, and all of the
rights of Borrower as an unpaid seller of goods or services, including, without
limitation, the rights of stoppage in transit, replevin, reclamation and resale;
and all of the foregoing, whether now existing or hereafter created or acquired.
1.22. "Trademark License" shall mean any written agreement granting any right to
use any Trademark or Trademark registration, as the same may from time to time
be amended or supplemented.
1.23. "Trademarks" shall mean all of the following now owned or hereafter
acquired by the Borrower: (i) all trademarks, trade names, corporate names,
business names, trade styles, service marks, logos, other source or business
identifiers, prints and labels on which any of the foregoing have appeared or
appear, designs and general intangibles of like nature, now existing or
hereafter adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith (other than "intent to use" applications
until a verified statement of use is filed with respect to such applications),
including, without limitation, registrations, recordings and applications (other
than "intent to use" applications until a verified statement of use is filed
with respect to such applications) in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any State
thereof or any other country or any political subdivision thereof, and (ii) all
reissues, extensions or renewals thereof.
1.24. "UCC" shall mean the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of Ohio; provided, however, in the event that,
by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of the Bank's security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of Ohio, the term "UCC" shall mean the Uniform Commercial Code as
in effect in such other jurisdiction for purposes of the provisions hereof
relating to such attachment, perfection or priority and for purposes of
definitions related to such provisions.
1.25. "Collateral" means all of the following of the Borrower:
1.25.1. all Contracts and Licenses (including, without limitation, (A) all
monies due and claims for money due or to become due under any Contract or
License, (B) any damages arising out of or for breach or default in respect of
any such Contract or License and (C) all other amounts from time to time paid or
payable under or in connection with any such Contract or License);
1.25.2. all Accounts Receivable and Chattel Paper (including, without
limitation, (A) all monies due and claims for money due or to become due under
any Accounts Receivable or Chattel Paper, (B) any damages arising out of or for
breach or default in respect of any such Accounts Receivable or Chattel Paper
and (C) all other amounts from time to time paid or payable under or in
connection with any such Accounts Receivable or Chattel Paper);
1.25.3. all Documents;
1.25.4. all Instruments;
1.25.5. all Inventory;
1.25.6. all Equipment;
1.25.7. the Escrow Collateral;
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1.25.8. all Intangible Assets;
1.25.9. all Motor Vehicles;
1.25.10. all other goods and personal property of the Borrower, whether
tangible or intangible or whether now owned or hereafter acquired by the
Borrower and wherever located; and to the extent not otherwise included, all
Proceeds and products of any or all of the foregoing and all accessions to,
substitutions and replacements for, and rents, profits and products of each of
the foregoing. Notwithstanding the foregoing, the defined term "Collateral" does
not include any deposit accounts of Borrower with respect to which the Bank has
a right of set-off pursuant to paragraph 7.3. hereof.
1.26. "Event of Default" means each and every event specified in Section 6. of
this Agreement.
1.27. "Obligations" means all indebtedness, obligations and liabilities of
Borrower to Bank of every kind and description direct or indirect, secured or
unsecured, joint or several, absolute or contingent, due or to become due,
whether for payment or performance, now existing or hereafter arising,
regardless of how the same arise or by what instrument, agreement or book
account they may be evidenced, or whether evidenced by any instrument, agreement
or book account, including, without limitation, all loans (including any loan by
renewal or extension), all indebtedness, all undertakings to take or refrain
from taking any action, all indebtedness, liabilities or obligations owing from
Borrower to others which Bank may have obtained by purchase, negotiation,
discount, assignment or otherwise, and all interest, taxes, fees, charges,
expenses and attorneys' fees chargeable to Borrower or incurred by Bank under
this Agreement, or any other document or instrument delivered in connection
herewith, and further including, without limitation, all obligations of Borrower
to Bank pursuant to the Loan Agreement dated as of the date hereof by and
between the Borrower and the Bank, the Notes executed in connection therewith,
and each of the Related Documents executed in connection therewith (each as
defined in such Loan Agreement).
2. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Bank, and such representations and
warranties shall be continuing representations and warranties so long as any
Obligations shall remain outstanding, as follows:
2.1. The Borrower is a corporation which has been duly organized, is validly
existing and in full force and effect under the laws of the State of Ohio. The
Borrower is duly qualified to transact business or own real property in each
other jurisdiction in which such qualification is required under the laws of
such jurisdiction. Borrower has the power and authority to own the Collateral,
to enter into and perform this Agreement, and any document or instrument
delivered in connection herewith and to incur the Obligations.
2.2. Borrower utilizes no tradenames in the conduct of its business, except as
set forth in Section 10. of this Agreement; has not changed its name, been the
surviving entity in a merger, acquired any business; or (if Receivables are
included as Collateral), changed the location of its chief place of business or
chief executive office or the location of the records with respect to
Receivables or the location of any returns of inventory, or (if inventory is
included as Collateral), the location of any of the inventory, or (if Equipment
is included as Collateral), the location of the Equipment; except as set forth
in Section 10. hereof.
2.3. The execution, delivery, and performance of this Agreement and any other
document or instrument delivered in connection herewith will not result in the
creation or imposition of any lien or encumbrance upon any of the Collateral
(immediately, with the passage of time, or with the giving of notice and the
passage of time) except for the liens and encumbrances created hereunder.
2.4. This Agreement and any document or instrument delivered in connection
herewith and the transactions contemplated hereby or thereby have been duly
authorized, and/or executed and delivered, as appropriate; and this Agreement
and such other documents and instruments constitute valid and legally binding
obligations of Borrower and are enforceable against Borrower in accordance with
their respective terms.
2.5. Borrower is the owner of the Collateral free and clear of all security
interests, encumbrances or liens, except liens which arise by operation of law
with respect to obligations of Borrower which are not yet due and payable and
except as may be specifically set forth in Section 10. hereof; and Borrower will
defend the Collateral against all claims and demands of all persons at any time
claiming an interest therein.
2.6. Borrower has filed all federal, state and local tax returns and other
reports it is required to file and has paid or made adequate provision for
payment of all such taxes, assessments and other governmental charges.
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2.7. No representation, warranty or statement by Borrower contained herein or in
any certificate or other document furnished or to be furnished by Borrower
pursuant hereto contains or at the time of delivery shall contain any untrue
statement of material fact, or omits, or shall omit at the time of delivery, to
state a material fact necessary to make it not misleading.
3. SPECIFIC REPRESENTATIONS, WARRANTIES AND COVENANTS WITH RESPECT TO
COLLATERAL
With respect to the Collateral, Borrower hereby represents and warrants and
covenants with Bank, as follows:
3.1. With respect to Inventory:
3.1.1. All Inventory is in possession of Borrower at Borrower's Address
and all records of Borrower pertaining thereto are kept at Borrower's
Address except as set forth in Section 10. hereof, and Borrower shall
notify Bank, no later than thirty (30) days prior to any change of any
location where the Inventory is or may be kept.
3.1.2. Borrower shall not sell, lease or otherwise transfer any interest
in the Inventory except that Borrower may, until an Event of Default
occurs, hold, process, sell, use or consume Inventory in the ordinary
course of Borrower's business, excluding, however, any sale or transfer
made in partial or total satisfaction of a debt;
3.1.3. Borrower shall keep current stock, cost and sales records of the
Inventory, accurately itemizing and describing the types and quantities of
Inventory, and the cost and selling price thereof and all books, records
and documents relating to the Inventory are and will be genuine, complete
and correct;
3.1.4. None of the Inventory is, or at any time or times hereafter will
be, stored with a bailee, without prior written consent of Bank; and
3.1.5. Borrower shall, at Bank's request, deliver to Bank any and all
evidence of ownership of, certificates of title to, or other documents
evidencing any interest in, any and all of the Inventory.
3.2. With respect to Equipment:
3.2.1. Place of business include(s): 0000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxx
Xxxxxx, Xxxx ; Birmingham Quarry, Erie County, Ohio. (Address of other
places of business of Borrower and of the location of Equipment other than
at Borrower's Address; owner and description of all leased premises); the
Equipment is in the possession of Borrower at Borrower's Address or at the
location(s) set forth in Section 10. hereof and that said location(s) if
not owned by Borrower, are leased by Borrower as set forth in Section 10.;
if Equipment is or shall be affixed to any real estate, including any
buildings owned or leased by Borrower or used by Borrower in the operation
of its business, Borrower shall provide Bank with disclaimers and waivers
necessary to make the security interest in the Equipment valid against
Borrower and other persons holding an interest in such real estate;
3.2.2. Borrower shall keep and maintain all Equipment in good operating
condition and repair, make all necessary repairs thereto and replacement
of parts thereof so that the value and operating efficiency thereof shall
at all times be maintained and preserved, and Borrower shall keep complete
and accurate books and records with respect to Equipment, including
maintenance records;
3.2.3. Borrower shall deliver to Bank any and all evidence of ownership
of, and certificates of title to, any and all of the Equipment;
3.2.4. Borrower shall not, without the prior written consent of Bank,
sell, offer to sell, lease or in any other manner dispose of any
Equipment; and
3.2.5. Borrower shall notify Bank no later than thirty (30) days prior to
any changes of any location where the Equipment is or may be kept.
3.3 With respect to Receivables:
3.3.1. The address of the chief executive office and chief place of
business of Borrower is Borrower's Address and Borrower has no other
places of business except as set forth above or in Section 10. hereof. All
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records pertaining to the Receivables (including computer records) and all
returns of inventory are kept at Borrower's Address, except as set forth
in Section 10. hereof; and Borrower will notify Bank, no later than thirty
(30) days prior to any change in address of the chief executive office or
chief place of business of Borrower or of the change of the location where
records pertaining to Receivables or returns of inventory are kept;
3.3.2. All books, records, and documents relating to any of the
Receivables (including computer records) are and will be genuine and in
all respects what they purport to be; and the amount of such Receivables
shown on the books and records of Borrower is and will be the correct
amount actually owing or to be owing at maturity of such Receivables;
3.3.3. Until Bank directs otherwise, Borrower shall collect the
Receivables, subject to the direction and control of Bank at all times.
Any proceeds of Receivables collected by Borrower shall not be commingled
with other funds of Borrower and shall, upon the request of Bank be
immediately delivered to Bank in the form received, except for necessary
endorsements to permit collection; Bank may in its sole discretion, allow
Borrower to use such funds to such extent and for such periods, if any, as
Bank elects;
3.3.4. Borrower shall notify Bank if any Receivables arise out of
contracts with the United States or any department, agency or
instrumentality thereof, and Borrower shall execute any instruments and
take any steps to perfect the assignment of the rights of Borrower to Bank
as required under the Federal Assignment of Claims Act or any similar act
or regulation; and
3.3.5 Borrower shall provide Bank, at its request, from time to time with:
confirmatory assignment schedules; copies of all invoices relating to the
Receivables; evidence of shipment or delivery of inventory; and, such
further information and/or schedules as Bank may reasonably require, all
in a form satisfactory to Bank.
4. GRANT OF SECURITY INTEREST
To secure the payment and performance of the Obligations, Borrower hereby
pledges, assigns and transfers to Bank, and grants to Bank a continuing
security interest in and to all of the Collateral.
5. GENERAL COVENANTS
5.1. Borrower covenants and agrees that so long as any Obligations remain
outstanding, the Borrower shall not mortgage, pledge, grant or permit to
exist a security interest in, or lien or encumbrance upon any of the
Collateral except in favor of Bank and except as otherwise permitted under
the Loan Agreement.
5.2. Borrower shall:
5.2.1 Furnish Bank:
(i) Within 15 days after the end of each calendar month an aged analysis
of all outstanding Receivables in form and substance satisfactory to Bank
and information concerning quantities, costs and fair market value with
respect to Inventory and/or Equipment, applicable; and
(ii) Promptly and in form satisfactory to Bank, such other information as
Bank may reasonably request from time to time.
5.2.2. Maintain casualty insurance coverage on the Collateral in such
amounts and of such types as may be requested by Bank, and in any event,
as are ordinarily carried by similar businesses; and in the case of all
policies insuring property in which Bank shall have a security interest of
any kind whatsoever, all such insurance policies shall provide that the
proceeds thereof shall be payable to Borrower and Bank, as their
respective interests may appear. All said policies or certificates
thereof, including all endorsements thereof and those required hereunder,
shall be deposited with Bank; and such policies shall contain provisions
that no such insurance may be cancelled or decreased without ten (10) days
prior written notice to Bank; and in the event of acquisition of
additional insurable Collateral, Borrower shall cause such insurance
coverage to be increased or amended in such manner and such extent as
prudent business judgment would dictate. If Borrower shall at any time or
times hereafter fail to obtain and/or maintain any of the policies of
insurance required herein, or fail to pay any premium in whole or in part
relating to any such policies, Bank may, but shall not be obligated to,
obtain and/or cause to be maintained insurance coverage with respect to
the Collateral, including, at Bank's option, the coverage provided by all
or any of the policies of Borrower and pay all or any part of the premium
therefor, without waiving an Event of Default by Borrower, and any sums so
disbursed by Bank shall be
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additional Obligations of Borrower to Bank payable on demand. Bank shall
have the right to settle and compromise any and all claims under any of
the policies required to be maintained by Borrower hereunder and Borrower
hereby appoints Bank as its attorney-in-fact, with power to demand,
receive and receipt for all monies payable thereunder, to execute in the
name of Borrower or Bank or both any proof of loss, notice, draft or other
instruments in connection with such policies or any loss thereunder and
generally to do and perform any and all acts as Borrower, but for this
appointment, might or could perform;
5.2.3. Permit Bank, through its authorized attorneys, accountants and
representatives, to inspect and examine the Collateral and the books,
accounts, records, ledgers and assets of every kind and description of
Borrower with respect thereto at all reasonable times and upon reasonable
notice;
5.2.4. Promptly notify Bank of any condition or event which constitutes,
or would constitute with the passage of time or giving of notice or both,
an Event of Default under this Agreement, and promptly inform Bank of any
events or change in the financial condition of Borrower occurring since
the date of the last financial statement of Borrower delivered to Bank,
which individually or cumulatively when viewed in light of prior financial
statements, may result in a material adverse change in the financial
condition of Borrower;
5.2.5. Maintain in good standing its existence as a corporation in its
jurisdiction of incorporation and its qualification to do business in
those jurisdictions where Borrower is required to be qualified;
5.2.6. If Borrower shall now or hereafter maintain an employee benefit
plan covered by Section 4021(a) of the Employee Retirement Income Security
Act of 1974 (hereinafter referred to as "ERISA") relating to plan
termination insurance, it shall promptly: (a) notify Bank of filing of
notice with the Pension Benefit Guaranty Corporation ("PBGC") pursuant to
Section 4042 of ERISA that the plan is to be terminated; and (b) notify
Bank of the institution of proceedings by the PBGC under Section 4042 of
ERISA;
5.2.7. Pay or deposit promptly when due all sales, use, excise, personal
property, income, withholding, corporate, franchise and other taxes,
assessments and governmental charges upon or relating to its ownership or
use of any of the Collateral and submit to Bank proof satisfactory to Bank
that such payments and/or deposits have been made; and
5.2.8. At any time and from time to time upon request of Bank, execute and
deliver to Bank, in form and substance satisfactory to Bank, such
documents as Bank shall deem necessary or desirable to perfect or maintain
perfected the security interest of Bank in the Collateral or which may be
necessary to comply with the provisions of the law of the State of Ohio or
the law of any other jurisdiction in which Borrower may then be conducting
business or in which any of the Collateral may be located.
6. EVENTS OF DEFAULT AND ACCELERATION
6.1. The occurrence of any one or more of the following events shall constitute
an Event of Default hereunder:
6.1.1. Default in the payment of any principal, interest or other charges
in respect to any of the Obligations within 5 days of its due date;
6.1.2. Default in the observance or performance of any covenant or
agreement of any Borrower herein set forth or set forth in any agreement,
note, or instrument heretofore, now or hereafter executed by the Borrower
in favor of Bank which default is not remedied within twenty (20) days
after notice thereof from the Bank;
6.1.3. Any representation, warranty, certificate, schedule or other
information made or furnished by any Borrower to Bank herein or pursuant
hereto is or shall be untrue or materially misleading;
6.1.4. Loss, theft, damage or destruction of any material portion of the
Collateral for which there is either no insurance coverage or for which in
the opinion of Bank there is insufficient insurance coverage, or the
making of any levy, seizure or attachment upon the Collateral;
6.1.5. Borrower or any guarantor of the Loan (1) applies for or consents
to the appointment of a receiver, trustee, or liquidator for itself, or of
all or a substantial or material part of its assets, (2) is unable, or
admits in writing its inability to pay its debts as they fall due, (3)
makes a general assignment for the benefit of creditors, (4) is
adjudicated a bankrupt or insolvent, (5) files a voluntary petition in
bankruptcy or a petition or any answer seeking reorganization or an
arrangement with creditors or to take advantage of any insolvency law, (6)
files any answer admitting the material allegations of a petition filed
against it in any bankruptcy, reorganization or insolvency proceeding, (7)
takes any action for the purpose of effecting any of the foregoing, (8)
has an order,
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judgment, or decree entered against it by any court of competent
jurisdiction approving a petition seeking its reorganization or appointing
a receiver, trustee or liquidator for it or of all or a substantial or
material part of its assets or (9) has a petition filed against Borrower
or any such guarantor in bankruptcy or seeking reorganization or an
arrangement with creditors or under any other insolvency law which shall
continue undismissed for a period of more than thirty (30) consecutive
days;
6.1.6. Any proceeding is filed or commenced by or against any Borrower or
any guarantor of any of the Obligations for dissolution or liquidation; or
any Borrower or any guarantor dies (if an individual) or voluntarily or
involuntarily terminates or dissolves or is terminated or dissolved; or
6.1.7. Bank reasonably deems itself insecure.
6.2. If any Event of Default shall occur, then or at any time thereafter, while
such Event of Default shall continue, Bank may declare all Obligations to be due
and payable, without notice, protest, presentment, or demand, of any kind, all
of which are hereby expressly waived by Borrower.
7. RIGHTS AND REMEDIES
Bank shall have, by way of example and not of limitation, the rights and
remedies set forth in Paragraph 7.1.(i) through (v), inclusive, and 7.3. at all
times prior to and/or after the occurrence of an Event of Default and shall have
all of the rights and remedies enumerated herein after the occurrence of an
Event of Default.
7.1. Bank, and any officer or agent of Bank is hereby constituted and appointed
as true and lawful attorney-in-fact of Borrower with power: (i) if Receivables
are part of the Collateral, to notify or require Borrower to notify any and all
account debtors and parties against which Borrower has a claim that the
Receivables have been assigned to Bank and/or that Bank has a security interest
therein and that all payments should be made to Bank; (ii) to endorse the name
of Borrower upon any instruments of payment (including payments made under any
policy of insurance) that may come into possession of Bank in full or part
payment of any amount owing to Bank; (iii) to sign and endorse the name of
Borrower upon invoice, freight or express xxxx, xxxx of lading, storage or
warehouse receipt, drafts against account debtors or other obligors and if
Receivables are a part of Collateral, to sign and endorse the name of Borrower
on any assignments, verifications and notices in connection with Receivables,
and any instrument or document relating thereto or to rights of Borrower
therein; (iv) to notify the post office authorities to change the address for
delivery of mail of Borrower to an address designated by Bank and to receive,
open and dispose of all mail addressed to Borrower; (v) and, if Receivables are
a part of the Collateral, to send requests for verification to account debtors
or other obligors; (vi) to sell, assign, xxx for, collect or compromise payment
of all or any part of the Collateral in the name of Borrower or in its own name,
or make any other disposition of Collateral, or any part thereof, which
disposition may be for cash, credit or any combination thereof, and Bank may
purchase all or any part of the Collateral at public or, if permitted by law,
private sale, and in lieu of actual payment of such purchase price, may set-off
the amount of such price against the Obligations; granting to Bank, as the
attorney-in-fact of Borrower, full power of substitution and full power to do
any and all things necessary to be done in and about the premises as fully and
effectually as Borrower might or could do but for this appointment, and hereby
ratifying all that said attorney-in-fact shall lawfully do or cause to be done
by virtue hereof. Neither Bank nor its agents shall be liable for any acts or
omissions or for any error of judgment or mistake of fact or law in its capacity
as such attorney-in-fact. This power of attorney is coupled with an interest and
shall be irrevocable so long as any Obligations shall remain outstanding.
7.2. Bank shall have the right to enter and/or remain upon the premises of
Borrower without any obligation to pay rent to Borrower or others, or any other
place or places where any of the Collateral is located and kept and; (i) remove
Collateral therefrom to the premises of Bank or any agent of Bank, for such time
as Bank may desire, in order to maintain, collect, sell and/or liquidate the
Collateral, or (ii) use such premises, together with materials, supplies, books
and records of Borrower, to maintain possession and/or the condition of the
Collateral, and to prepare the Collateral for selling, liquidating or
collecting. Bank may require Borrower to assemble the Collateral and make it
available to Bank at a place to be designated by Bank which is reasonably
convenient to both parties.
7.3. To the extent permitted under applicable law, Bank shall have the right to
set-off, without notice to Borrower, any and all deposits or other sums at any
time or times credited by or due from Bank to Borrower, whether in a special
account or other account or represented by a certificate of deposit (whether or
not matured) which deposits and other sums shall at all times constitute
additional security for the Obligations and may be set-off against all or any
part of the Obligations at any time if Borrower is primary obligor with respect
to such Obligations, or at or after the maturity of Obligations if Borrower is
secondary obligor.
7.4. Bank shall have, in addition to any other rights and remedies contained in
this Agreement, and any other agreements, guarantees, notices, instruments and
documents heretofore, now or at any time or times hereafter
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executed by Borrower and delivered to Bank, all of the rights and remedies of a
secured party under the Uniform Commercial Code in force in the State of Ohio,
as of the Date of Agreement, all of which rights and remedies shall be
cumulative, and non exclusive, to the extent permitted by law.
7.5. Any notice required to be given by Bank of a sale or other disposition or
other intended action by Bank with respect to any of the Collateral, or
otherwise, made in accordance with the terms of this Agreement at least five (5)
days prior to such proposed action, shall constitute fair and reasonable notice
to Borrower of any such action. In the event that any of the Collateral is used
in conjunction with any real estate, the sale of the Collateral in conjunction
with and as one parcel with any such real estate of Borrower, shall be deemed to
be a commercially reasonable manner of sale. The net proceeds realized by Bank
upon any such sale or other disposition, after deduction of the expenses of
retaking, holding, preparing for sale, selling or the like and reasonable
attorneys' fees and any other expenses incurred by Bank, shall be applied toward
satisfaction of the Obligations hereunder. Bank shall account to Borrower for
any surplus realized upon such sale or other disposition and Borrower shall
remain liable for any deficiency. The commencement of any action, legal or
equitable, shall not affect the security interest of Bank in the Collateral
until the Obligations hereunder or any judgment therefor are fully paid.
8. GENERAL PROVISIONS
8.1. The failure of Bank at any time or times hereafter to require strict
performance by Borrower of any of the provisions, warranties, terms and
conditions contained in this Agreement or in any other agreement, guaranty,
note, instrument or document now or at any time or times hereafter executed by
Borrower and delivered to Bank shall not waive, affect or diminish any right of
Bank at any time or times thereafter to demand strict performance thereof; and,
no rights of Bank hereunder shall be deemed to have been waived by any act or
knowledge of Bank, its agents, officers or employees, unless such waiver is
contained in an instrument in writing signed by an authorized officer of Bank
and directed to Borrower specifying such waiver. No waiver by Bank of any of its
rights shall operate as a waiver of any other of its rights or any of its rights
on a future occasion.
8.2. Any notice or demand to be given hereunder shall be duly given if delivered
or mailed to Borrower's address or Bank's address or such other address as the
parties may designate in writing for the receipt of notices, and shall be deemed
given upon delivery if hand delivered and, if mailed, shall be deemed given two
(2) business days after deposit with postage paid in an official depository
maintained by the United States Postal Service for the collection of mail.
8.3. This Agreement contains the entire understanding between the parties hereto
with respect to the transactions contemplated herein and such understanding
shall not be modified except in writing signed by or on behalf of the parties
hereto.
8.4. Whenever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law; should any
portion of this Agreement be declared invalid for any reason in any
jurisdiction, such declaration shall have no effect upon the remaining portions
of this Agreement, furthermore, the entirety of this Agreement shall continue in
full force and effect in all other jurisdictions and said remaining portions of
this Agreement shall continue in full force and effect in the subject
jurisdiction as if this Agreement had been executed with the invalid portions
thereof deleted.
8.5. In the event Bank seeks to take possession of any or all of the Collateral
by court process, Borrower hereby irrevocably waives any bonds and any surety or
security relating thereto required by any statute, court rule or otherwise as an
incident to such possession, and waives any demand for possession prior to the
commencement of any suit or action to recover with respect thereto.
8.6. The provisions of this Agreement shall be binding upon and shall inure to
the benefit of the heirs, administrators, successors and assigns of Bank and
Borrower, provided, however, Borrower may not assign any of its right or
delegate any of its obligations hereunder without the prior written consent of
Bank.
8.7. This Agreement is and shall be deemed to be a contract entered into and
made pursuant to the laws of the State of Ohio and shall in all respects be
governed, construed, applied and enforced in accordance with the laws of said
state; in the event that the Bank brings any action hereunder in any court of
record of the State of Ohio or the Federal Government, Borrower consents to and
confers, personal jurisdiction over Borrower by such court or courts and agrees
that service of process may be made upon Borrower by mailing a copy of the
summons to Borrower at Borrower's Address; and in any action hereunder Borrower
waives the right to demand a trial by jury.
8.8. If, prior hereto and/or at any time or times hereafter, Bank shall employ
counsel in connection with the execution and consummation of the transactions
contemplated by this Agreement or to commence, defend or
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intervene, file a petition, complaint, answer, motion or other pleadings, or to
take any other action in or with respect to any suit or proceeding (bankruptcy
or otherwise) relating to this Agreement, the Collateral or any other agreement,
guaranty, note, instrument or document heretofore, now or at any time or times
hereafter executed by Borrower and delivered to Bank, or to protect, collect,
lease, sell, take possession of or liquidate any of the Collateral, or to
attempt to enforce or to enforce any security interest in any of the Collateral,
or to enforce any rights of Bank hereunder, whether before or after the
occurrence of any Event of Default, or to collect any of the Obligations, then
in any of such events, all of the reasonable attorneys' fees arising from such
services, and any expenses, costs and charges relating thereto, shall be part of
the Obligations, payable on demand and secured by the Collateral.
8.9. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
but one and the same instrument.
8.10. Each reference herein to Bank shall be deemed to include its successors
and assigns, and each reference to Borrower and any pronouns referring thereto
as used herein shall be construed in the masculine, feminine, neuter, singular
or plural, as the context may require, and shall be deemed to include the legal
representatives, successors and assigns of Borrower, all of whom shall be bound
by the provisions hereof. The term "Borrower" as used herein shall, if this
Agreement is signed by more than one Borrower, mean, unless this Agreement
otherwise provides or unless the context otherwise requires, the "Borrower and
each of them" and each and every representation, promise, agreement and
undertaking shall be joint and several, except that the granting of the security
interest, right of set-off and lien shall be by each Borrower in its several
respective property. In the event that there is more than one Borrower, any loan
which is secured by this Agreement, shall be deemed to be made at the request of
and for the benefit of each Borrower.
8.11. The section headings herein are included for convenience only and shall
not be deemed to be a part of this Agreement.
9. ASSIGNMENT BY BANK
Bank may, from time to time, without notice to the undersigned, sell, assign,
transfer or otherwise dispose of all or any part of the Obligations and/or the
Collateral therefor. In such event, each and every immediate and successive
purchaser, assignee, transferee or holder of all or any part of the Obligations
and/or the Collateral shall have the right to enforce this Agreement, be legal
action or otherwise, for its own benefit as fully as if such purchaser,
assignee, transferee or holder were herein by name specifically given such
rights. Bank shall have an unimpaired right to enforce this Agreement for its
benefit to that portion of the Obligations of Borrower as Bank has not sold,
assigned, transferred or otherwise disposed of.
10. ADDITIONAL INFORMATION
Information, if any, required to be set forth herein by paragraphs 2.2., 2.5.,
3.1.1., 3.2.1. and/or 3.3.1. hereof, as applicable, shall be inserted in the
following spaces:
2.2. (Borrower's tradenames, prior names, predecessors in merger, businesses
acquired and/or other locations):
CLEVELAND QUARRIES
2.5. (Borrower's other security interests, encumbrances and liens):
EXISTING LEASES AND/OR EQUIPMENT LOANS:
3.1.1. (Location of Inventory or records with respect thereto, other than at
Borrower's Address):
BIRMINGHAM ADDRESS:
3.2.1. (Address of other places of business of Borrower and of the location of
Equipment other than at Borrower's Address and owner description of all leased
premises):
BIRMINGHAM ADDRESS:
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3.3.1. (Address of other place(s) of business of Borrower and place(s) where
records (including computer records) with respect to Receivables or returns of
Inventory are kept other than Borrower's Address):
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, THE PARTIES HERETO HAVE SIGNED THIS AGREEMENT ON THE DATE
WRITTEN ABOVE, INTENDING TO BE LEGALLY BOUND.
DOLLAR BANK, FEDERAL SAVINGS BANK
By: /s/ Xxxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxx
-----------------------------------
Title: Assistant Vice President
----------------------------------
AMERICAN STONE CORPORATION
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------
Title: President
----------------------------------
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OPEN-END MORTGAGE AND SECURITY AGREEMENT
(Total Principal Indebtedness Not to Exceed $1,400,000.00)
THIS MORTGAGE (hereinafter referred to as "Mortgage") made this 16th
day of February, 2001, between AMERICAN STONE CORPORATION, having an address of
0000 Xxxxxx Xxxx, Xxxxxxx, Xxxx 00000 (hereinafter [jointly and severally]
referred to as the "Mortgagor"), and DOLLAR BANK, FEDERAL SAVINGS BANK, with
offices at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 (hereinafter referred
to as "Mortgagee").
R E C I T A L S:
A. Mortgagor has requested, and Mortgagee has extended, a loan in
the aggregate principal amount of One Million Four Hundred Thousand and 00/100
Dollars ($1,400,000.00) to Mortgagor (hereinafter referred to as the "Loan").
B. The Loan is evidenced by two notes of even date herewith in the principal
amounts of $900,000.00 (the "Term Loan Note") and $500,000.00 (the "Line of
Credit Note"). The Term Note and the Line of Credit Note, together with any and
all amendments, modifications, renewals, extensions, replacements, restatements,
and refinancings thereof are hereinafter collectively referred to as the
"Notes".
C. The Loan has been guaranteed by American Stone Industries, Inc. (the
"Guarantor") pursuant to a Guaranty Agreement With Warrant To Confess Judgment
of even date herewith (the "Guaranty").
D. Mortgagor, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged and as security for: (1) the payment,
performance and observance by Mortgagor of Mortgagor's obligations in connection
with the Loan, including but not limited to principal, interest, late charges
and other obligations under the Notes; (2) the payment by Mortgagor to Mortgagee
of all sums incurred, expended or advanced by Mortgagee pursuant to any
provision of this Mortgage; and (3) the payment, performance and observance by
Mortgagor of each and every other covenant, condition and obligation contained
in this Mortgage or referred to herein, or incurred in connection herewith
(collectively, the "Indebtedness"), Mortgagor grants, conveys, and mortgages
unto Mortgagee all that certain real estate and improvements thereon erected
situate in the Township of Xxxxxxxx, County of Erie and State of Ohio, and more
particularly described on Exhibit "A", attached hereto and made a part hereof.
TOGETHER WITH all of Mortgagor's right, title and interest now owned
or hereafter acquired in:
(1) all buildings and other improvements erected or hereafter
erected thereon; and
(2) all fixtures, now or at any time hereafter installed in,
attached to or a part of the above described real estate or any buildings and
improvements now or hereafter erected thereon and all replacements thereof and
proceeds thereof; and
(3) any and all tenements, hereditaments and appurtenances belonging
to the real estate or any part thereof hereby mortgaged or intended so to be, or
in any way appertaining thereto, and all streets, alleys, passages, ways, water
courses, and all easements and covenants now existing or hereafter created for
the benefit of Mortgagor or any subsequent owner or tenant of the mortgaged real
estate over ground adjoining the mortgaged real estate and all rights to enforce
the maintenance thereof, and all other rights, liberties and privileges of
whatsoever kind or character, and the reversions and remainders, income, rents,
issue and
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profits arising therefrom, and all the estate, right, title, interest, property,
possession, claim and demand whatsoever, at law or in equity, of Mortgagor in
and to the real estate or any part thereof; and
(4) all proceeds of the conversion, voluntary or involuntary, of any
of the foregoing into cash or liquidated claims, including, without limitation,
proceeds of insurance and condemnation awards; and
(5) all monies due or to become due under, and all right, title and
interest in, to and under, any lease or leases now or hereafter affecting the
aforesaid real estate and improvements; and
All of the above-mentioned real estate, buildings and improvements,
fixtures, tenements, hereditaments and appurtenances, and other property
interests are sometimes collectively referred to herein as the "Mortgaged
Property".
TO HAVE AND TO HOLD the Mortgaged Property hereby conveyed or
mentioned and intended so to be, unto Mortgagee, its successors and assigns to
its own use forever.
PROVIDED ALWAYS, and this instrument is upon the express condition
that, if Mortgagor causes to be paid to Mortgagee all sums payable by Mortgagor
to Mortgagee in accordance with the provisions of each of the Notes and this
Mortgage, at the times and in the manner specified, without deduction, fraud, or
delay, and Mortgagor performs and complies with all the agreements, conditions,
covenants, provisions and stipulations contained herein and in each of the Notes
and this Mortgage, then this Mortgage and the estate hereby granted shall cease
and become void.
MORTGAGOR REPRESENTS, COVENANTS AND WARRANTS to and with Mortgagee
that until the Indebtedness secured hereby is fully repaid:
1. Warranty of Title. Mortgagor generally warrants title to the
Mortgaged Property. Further, Mortgagor warrants that the lien of this Mortgage
is second only to unpaid real property taxes not yet due and payable.
2. Payment and Performance. Mortgagor shall pay to Mortgagee, in
accordance with the terms of each of the Notes, this Mortgage, or any other
instrument evidencing the Indebtedness, all Indebtedness secured hereby and
shall cause performance and compliance with all the agreements, conditions,
covenants, provisions and stipulations of each of the Notes, this Mortgage and
any other instrument evidencing or securing the Indebtedness.
3. Maintenance of Mortgaged Property. Mortgagor shall keep and
maintain or cause to be kept and maintained all buildings and improvements now
or at any time hereafter erected on the Mortgaged Property and the sidewalks and
curbs abutting them, in good order and condition, and will make or cause to be
made, as and when necessary for such purpose, all repairs, renewals and
replacements, structural and nonstructural, exterior and interior, ordinary and
extraordinary, foreseen and unforeseen. Mortgagor shall abstain from and shall
not permit the commission of waste in or about the Mortgaged Property; shall not
remove or demolish, or alter the structural character of any building erected at
any time on the Mortgaged Property, without the prior written consent of
Mortgagee; and shall not permit the Mortgaged Property to become vacant or
unguarded. Mortgagor shall not permit any lien or claim to be filed against
Mortgagor's interest in the Mortgaged Property, or any part thereof.
4. Insurance.
(a) Mortgagor shall keep the Mortgaged Property continuously
insured, in an amount of not less than the cost to replace the Mortgaged
Property or an amount not less than one hundred percent (100%) of the full
insurable value of the Mortgaged Property, whichever is greater, against loss or
damage by
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fire, with extended coverage and against other hazards as Mortgagee may
reasonably require, with an insurance company or companies satisfactory to
Mortgagee, and in such total amounts (other than the foregoing fire and extended
coverage insurance) as Mortgagee may require from time to time. All polices,
including policies for any amounts carried in excess of the required minimum and
policies not specifically required by Mortgagee, shall be in form satisfactory
to Mortgagee, shall be maintained in full force and effect, shall be assigned to
Mortgagee, with premiums prepaid (or subject to a payment plan for the payment
of premium over the term of the policy), as collateral security for payment of
the Indebtedness secured hereby, shall be endorsed with a standard mortgagee
clause in favor of Mortgagee as its interest may appear, not subject to
contribution and shall provide for at least thirty (30) days notice of
cancellation to Mortgagee. Mortgagee's name and address on any policy or
policies of insurance shall appear as: "Dollar Bank, Federal Savings Bank, X.X.
Xxx 0000, Xxxxxxxxx, Xxxx 00000-0000."
(b) If the insurance, or any part thereof, shall expire, or be
withdrawn, or become void or unavailable by Mortgagor's breach of any condition
thereof, or if there is the failure or impairment of the capital of any company
in which the insurance may then be carried, or if for any reason in the
reasonable opinion of Mortgagee the insurance shall be unsatisfactory to
Mortgagee, Mortgagor shall place new insurance on the Mortgaged Property,
satisfactory to Mortgagee. In the event that Mortgagor fails or refuses to place
such new insurance on the Mortgaged Property, or fails or refuses to place such
new insurance on the Mortgaged Property which is satisfactory to Mortgagee, then
Mortgagee may obtain such insurance as Mortgagee deems necessary to satisfy the
terms and conditions of this Mortgage. In such event, the cost of such insurance
plus a reasonable amount to reimburse Mortgagee for its administrative expenses
in obtaining such insurance, shall be immediately paid to Mortgagee by
Mortgagor. In the event that such costs and expenses are not immediately paid to
Mortgagee by Mortgagor, then the amount of such costs and expenses shall be
added to the outstanding principal balance of the Indebtedness hereby secured,
shall accrue interest thereon at the then highest effective rate set forth in
any of the Notes and shall be secured by this Mortgage.
(c) All renewal policies, with premiums paid (or subject to a
payment plan for the payment of premium over the term of the policy), shall be
delivered to Mortgagee at least fifteen (15) days before expiration of the old
policies.
(d) In the event of loss, Mortgagor will give immediate notice
thereof to Mortgagee, and Mortgagee may make proof of loss if not made promptly
by Mortgagor. Each insurance company concerned is hereby authorized and directed
to make payment under such insurance, including return of unearned premiums,
directly to Mortgagee instead of to Mortgagor and Mortgagee jointly, and
Mortgagor appoints Mortgagee, irrevocably, as Mortgagor's attorney-in-fact to
endorse any draft therefor. Mortgagee shall have the right to retain and apply
the proceeds of any such insurance, at its election, to reduction of the
Indebtedness secured hereby, or to restoration or repair of the property
damaged. If Mortgagee becomes the owner of the Mortgaged Property or any part
thereof by foreclosure or otherwise, such policies, including all right, title
and interest of Mortgagor thereunder, shall become the absolute property of
Mortgagee.
(e) Mortgagor shall also maintain comprehensive general
liability insurance in an amount of not less than One Million Dollars
($1,000,000), worker's compensation insurance, including employer's liability
insurance, in amounts and form as directed by applicable state laws and
regulations, and comprehensive automobile liability insurance. Mortgagor shall
provide evidence of such liability insurance policies to Mortgagee and such
policies shall name Mortgagee as Certificate Holder.
5. Taxes and Other Charges. Mortgagor shall pay when due and payable
and before interest or penalties are due thereon (the "Due Date"), without any
deduction, defalcation or abatement, all taxes, assessments, water and sewer
rents and all other charges or claims ("Impositions") which may be assessed,
levied, or filed at any time against Mortgagor, the Mortgaged Property or any
part thereof or against the interest of Mortgagee therein, or which by any
present or future law may have priority over the Indebtedness secured hereby
either in lien or in distribution out of the proceeds of any judicial sale; and
Mortgagor shall
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produce to Mortgagee not later than the Due Date receipts for the payment
thereof. Provided, however, that if Mortgagor shall have deposited with
Mortgagee before the due date thereof sums sufficient to pay any such taxes,
assessments, water and sewer rents, charges or claims following a request by
Mortgagee for such deposit, and an Event of Default (as defined below) has not
occurred and is not continuing, they shall be paid by Mortgagee. No credit shall
be claimed or allowed on the interest payable on the Indebtedness because of any
taxes or other charges paid.
6. Installments for Taxes and Other Charges. Without limiting the
effect of Paragraph 5 hereof and if so requested by Mortgagee, Mortgagor shall
pay to Mortgagee monthly, an amount equal to one-twelfth (1/12) of the annual
real estate taxes, and upon written request of Mortgagee, Mortgagor shall pay to
Mortgagee monthly, an amount equal to one-twelfth (1/12) of the annual insurance
premiums, water and sewer rents, any special assessments, charges or claims and
any other item which at any time may be or become a lien upon the Mortgaged
Property prior to the lien of this Mortgage; and on demand from time to time
Mortgagor shall pay to Mortgagee any additional sums necessary to pay the real
estate taxes, and above identified items, all as estimated by Mortgagee; the
amounts so paid shall be security for the real estate taxes, and above
identified items and shall be used in payment thereof if an Event of Default (as
defined below) has not occurred and is not continuing. No amount so paid shall
be deemed to be trust funds but may be commingled with general funds of
Mortgagee, and no interest shall be payable thereon unless required pursuant to
applicable law. If, pursuant to any provision of this Mortgage, the Indebtedness
becomes due and payable, Mortgagee shall have the right, at its election to
apply any amount so held against the entire Indebtedness secured hereby. At
Mortgagee's option, Mortgagee from time to time may waive, and after any such
waiver may reinstate, the provisions of this paragraph requiring the monthly
payments.
7. Partnership or Corporate Existence - Taxes. If Mortgagor or any
successor or grantee of Mortgagor is a partnership, whether general or limited,
or a corporation, it shall keep in full effect its valid existence and rights as
a partnership or a corporation, as the case may be, under the laws of the state
of its formation or incorporation and its right to own property and transact
business in the state in which the Mortgaged Property is situated during the
entire time that it has any ownership interest in the Mortgaged Property. For
all periods during which title to the Mortgaged Property or any part thereof
shall be held by a corporation, association or partnership subject to corporate
taxes or taxes similar to corporate taxes, Mortgagor shall file returns for such
taxes with the proper authorities, bureaus or departments and it shall pay, when
due and payable and before interest or penalties are due thereon, all taxes
owing by Mortgagor to the United States, to such state of incorporation and to
the state in which the Mortgaged Property is situated and any political
subdivision thereof. Mortgagor shall produce to Mortgagee receipts showing
payment of any and all such taxes, charges or assessments prior to the last
dates upon which such taxes, charges or assessments are payable without interest
or penalty charges, and within ten (10) days of receipt thereof all settlements,
notices of deficiency or overassessment and any other notices pertaining to
Mortgagor's tax liability, which may be issued by the United States, such state
of incorporation, the state in which the Mortgaged Property is situated and any
political subdivision thereof.
8. Regulated Materials. Mortgagor covenants and represents (1) that
Mortgagor will not cause or permit the Mortgaged Property to contain, and that
the Mortgaged Property does not contain (a) asbestos in any form; (b) urea
formaldehyde foam insulation; (c) transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls in excess of 50
parts per million; or (d) any other chemical, material, air pollutant, toxic
pollutant, waste, or substance that is (i) regulated as toxic or hazardous or
exposure to which is prohibited, limited or regulated by the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response,
Compensation and Liability Act, the Hazardous Materials Transportation Act, the
Toxic Substances Control Act, the Clean Air Act, and the Clean Water Act, or any
amendment thereto, or any other federal, state, county, regional, local, or
other governmental statute, regulation, or authority, or which, even if not so
regulated, may or could pose a hazard to the health and safety of the occupants
of the Mortgaged Property or the owners of property adjacent to the Mortgaged
Property and is either (ii) present in amounts in excess of that permitted or
deemed safe under
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applicable law or (iii) handled, stored or otherwise used in any way that is
prohibited or deemed unsafe under applicable law. (The substances described in
(a), (b), (c) or (d) above are referred to collectively herein as "Regulated
Materials"); (2) that the Mortgaged Property does not contain any underground or
above ground storage tanks; (3) that the Mortgaged Property is not now being
used nor has the Mortgaged Property ever been used for any activities involving,
directly or indirectly, the use, generation, treatment, storage, transportation,
or disposal of any Regulated Materials; (4) that neither the Mortgaged Property
nor Mortgagor is subject to any existing, pending, or threatened investigation
or inquiry by any governmental authority, or any remedial obligations under any
applicable laws, rules, or regulations pertaining to health or the environment;
(5) that Mortgagor shall not permit any environmental liens, whether federal,
state or local in nature, to be placed on or against the Mortgaged Property; and
(6) that Mortgagor is not subject to any environmental liens or enforcement
orders by any competent authority for any activity or concerning any property
located off-site from the Mortgaged Property that would impair Mortgagor from
performing any of Mortgagor's obligations under any of the Notes or hereunder.
Mortgagor shall not install, store, use, treat, transport, or
dispose (or knowingly permit or acquiesce in the installation, storage, use,
treatment, transportation or disposal by Mortgagor, its agents, employees,
independent contractors or tenants) on the Mortgaged Property of any Regulated
Materials. In the event of any such installation, storage, use, treatment,
presence, transportation or disposal, whether previously existing or hereafter
occurring, and whether by Mortgagor or any predecessor in title, or any
employees, agents, contractors or third parties, and whether or not known of by
Mortgagor or knowingly permitted or acquiesced in by Mortgagor, Mortgagor shall
remove any such Regulated Materials (other than asbestos, which shall only be
removed (i) if required to comply with this paragraph or (ii) if required by
law, rule, regulation or order of competent authority), and shall comply with
the regulations or orders of any competent authority, including, but not limited
to, those laws and regulations dealing with disposal of Regulated Materials. If
Mortgagor shall (i) fail to proceed with such removal or (ii) fail to comply
with any such regulations or orders issued by any competent authority as soon as
reasonably possible, and in any case within the cure period permitted under the
applicable federal, state or local regulation or order, such failure shall, at
Mortgagee's option, constitute an Event of Default hereunder. Nothing hereunder
shall obligate Mortgagee to advance any funds hereunder for the removal of
Regulated Materials or the compliance with any such regulations or orders of any
governmental authority relating to Regulated Materials found on the Mortgaged
Property.
Mortgagor shall indemnify Mortgagee and hold Mortgagee, its
directors, officers, employees, agents, successors and assigns harmless from and
against all loss, damage, and expense (including, without limitation, attorney's
fees, environmental expert's fees, and costs incurred in the investigation,
defense, and settlement of claims, and for the removal of any governmental
environmental liens placed against the Mortgaged Property) that Mortgagee may
incur as a result of or in connection with the assertion against Mortgagee of
any claim relating directly or indirectly, in whole or in part, to the use,
presence, removal, release, storage, generation, disposal or manufacture of any
Regulated Materials, including, but not limited to, any claims filed against
Mortgagor by any third parties by reason of Mortgagor's failure concerning
Regulated Materials that have been paid by Mortgagee, or relating to any
activity on or off the Mortgaged Property, previously existing or hereafter
occurring, and whether such activity was carried on by Mortgagor or any
predecessor in title or any employees, agents, contractors or third parties, if
such activity involved Regulated Materials, in whole or in part, directly or
indirectly, or noncompliance with any federal, state, or local laws, rules,
regulations, or orders relating thereto.
Mortgagor shall promptly notify Mortgagee in writing of any order or
pending or threatened action, investigation or inquiry by any regulatory agency
or other governmental body, or any claims made by any third party, relating to
Regulated Materials in, under or upon the Mortgaged Property or emanations from
the Mortgaged Property, and shall promptly furnish Mortgagee with copies of any
correspondence or legal pleadings in connection therewith.
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Mortgagee shall have the right to join and participate as a party in
any legal proceedings or actions initiated with respect to any claims made or
threatened by any third party against Mortgagor or the Mortgaged Property
relating to damages, contributions, cost recovery compensation, loss or injury
resulting from any Regulated Materials affecting the Mortgaged Property, and to
have its reasonable attorneys' fees in connection therewith paid by Mortgagor.
Further, without Mortgagee's prior written consent, Mortgagor shall not enter
into any settlement agreement, consent decree or other compromise with respect
to any claims based on Regulated Materials, which settlement, consent or
compromise might, in Mortgagee's judgment, impair the value of Mortgagee's
security hereunder.
In addition, Mortgagee shall have the right, but shall not be
obligated, to notify any state, federal or local governmental authority of
information that may come to its attention with respect to Regulated Materials
in, under, upon or emanating from the Mortgaged Property, and Mortgagor
irrevocably releases Mortgagee from any claims of loss, damage, liability,
expense or injury relating to or arising from, directly or indirectly, any such
disclosure.
The liability of Mortgagor to Mortgagee under the covenants of this
Paragraph 8 shall survive any foreclosure of this Mortgage or any transfer of
the Mortgaged Property by deed in lieu of foreclosure.
At any time hereafter terminating only upon repayment in full of the
indebtedness secured hereby (and for such purpose of repayment from proceeds of
foreclosure sale shall not be deemed repayment of such indebtedness), Mortgagee
may require Mortgagor to provide Mortgagee, at the expense of Mortgagor, an
inspection or audit of the Mortgaged Property, prepared by a qualified
consultant approved by Mortgagee, in form and substance satisfactory to
Mortgagee, certifying as to the presence or absence of Regulated Materials, or
to permit Mortgagee to so inspect or audit the Mortgaged Property at Mortgagor's
expense, and Mortgagor hereby grants to Mortgagee, its employees, agents and
independent contractors, the right to enter upon the Mortgaged Property for the
purpose of conducting tests, soil borings, the installation of monitoring xxxxx
and such other tests as Mortgagee deems necessary or desirable.
If the Mortgaged Property now or hereafter contains any material or
product containing more than 0.1 percent asbestos by weight, Mortgagor shall, at
Mortgagor's expense, prepare, implement, and comply with on an ongoing basis a
written asbestos operations and maintenance program prepared by a qualified
environmental consultant. Such program shall assure that (a) all persons are
protected from any release of asbestos fibers, and (b) asbestos fibers are not
distributed or released on the Mortgaged Property during maintenance, repairs,
alterations or improvements. Any removal of asbestos or asbestos-containing
material or any work on the Mortgaged Property affecting asbestos or asbestos
containing-material shall be at Mortgagor's sole expense, and shall be
accomplished in full accordance with this program, and in compliance with all
federal, state and local laws, ordinances and regulations. Mortgagor shall
deliver to Mortgagee a certificate executed by a certified asbestos removal
contractor indicating that all asbestos has been removed and disposed of in
accordance with all applicable laws, ordinances and regulations pertaining
thereto. Mortgagor acknowledges that Mortgagor shall remain liable to Mortgagee
under the covenants of this Paragraph 8, regardless of the removal of asbestos
from the Mortgaged Property pursuant to this Paragraph 8, for the presence of
asbestos prior to its removal, for the asbestos removal and disposal itself, or
for any failure of Mortgagor or the contractor to remove asbestos.
9. Security Agreement. This Mortgage is also a security agreement
under the Uniform Commercial Code for any of the Mortgaged Property which, under
applicable law, may be subject to a security interest under the Uniform
Commercial Code, whether acquired now or in the future, and all products and
cash and non-cash proceeds thereof (collectively, the "Collateral") and
Mortgagor hereby grants Mortgagee a security interest in the Collateral. Without
the prior written consent of Mortgagee, Mortgagor shall not create or permit to
exist any other lien or security interest in any of the Collateral. If an Event
of Default (as defined below) has occurred and is continuing, Mortgagee has the
remedies of a secured party under the Uniform Commercial Code, in addition to
all remedies provided by this Mortgage or existing under
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applicable law. In exercising any remedies, Mortgagee may exercise its remedies
against the Collateral separately or together, and in any order, without in any
way affecting the availability of its other remedies.
10. Financing Statement. This Mortgage and security agreement is
also a financing statement. Mortgagor is the debtor and Mortgagee is the secured
party. The address of Mortgagee set forth at the beginning of this Mortgage is
an address of the secured party from which information concerning the security
interest may be obtained. The address of Mortgagor set forth at the beginning of
this Mortgage is a mailing address of the debtor. The description of the
Mortgaged Property includes goods which are or are to become fixtures related to
the real estate described in this Mortgage. The record owner of such real estate
is Mortgagor.
11. Compliance with Laws and Regulations. Mortgagor shall comply
with all requirements of board of fire underwriters or insurance companies, and
all laws, ordinances, regulations and orders of all Federal, state, municipal
and other governmental authorities relating to the Mortgaged Property and the
use and occupancy thereof, including without limitation fair housing laws to the
extent applicable.
12. Flood Determination. Mortgagee will have a flood determination
performed by an outside vendor to determine whether the Mortgaged Property is
designated as being situated in a Special Flood Hazard Area ("SFHA") according
to the Federal Emergency Management Agency ("FEMA"). If the Mortgaged Property
or any portion of the Mortgaged Property is located in a SFHA and the community
in which the Mortgaged Property is situated participates in the National Flood
Insurance Program ("NFIP"), Mortgagor shall purchase and maintain flood
insurance during the term of this Mortgage in an amount equal to the lesser of
the aggregate balance of the Notes or the maximum amount available under the
NFIP. If the Mortgaged Property is not located in a SFHA, if the community does
not participate in the NFIP or if the aggregate balance of the Notes is greater
than the maximum amount available under the NFIP, Mortgagee, at its sole
discretion, may require that Mortgagor purchase and maintain such flood
insurance.
13. Inspection. Mortgagee and any persons authorized by Mortgagee
shall have the right at any time during business hours, upon reasonable notice
to Mortgagor, to enter the Mortgaged Property to inspect and photograph its
condition and state of repair and for the purpose of testing materials and
substances in and about the Mortgaged Property, including soils, for the
presence of Regulated Materials or waste therefrom.
14. Declaration of No Set-Off. Within ten (10) days after requested
to do so by Mortgagee, Mortgagor shall certify to Mortgagee or to any proposed
assignee of this Mortgage, in writing duly acknowledged, the amount of
principal, interest and other charges then owing on the obligation secured by
this Mortgage and by prior liens, if any, and whether there are any set-offs or
defenses against them.
15. Required Notices. Mortgagor shall notify Mortgagee promptly of
the occurrence of any of the following:
(a) a fire or other casualty causing damage to the Mortgaged
Property,
(b) receipt of written notice of condemnation or threatened
condemnation of the Mortgaged Property, or any part thereof,
(c) receipt of written notice from any governmental authority
relating to any material violation of structure, use or occupancy laws affecting
the Mortgaged Property,
(d) substantial change in the occupancy of the Mortgaged
Property,
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(e) commencement of any litigation affecting the Mortgaged
Property involving a claim in an amount in excess of Ten Thousand Dollars
($10,000).
16. Condemnation. In the event of any condemnation or taking of any
part of the Mortgaged Property by eminent domain, alteration of the grade of any
street, or other injury to or decrease in the value of the Mortgaged Property by
any public or quasi-public authority or corporation, all proceeds (that is, the
award or agreed compensation for the damage sustained) allocable to Mortgagor
shall be applicable first to payment of the Indebtedness secured hereby. No
settlement for the damages sustained shall be made by Mortgagor without
Mortgagee's prior written approval. Receipt by Mortgagee of any proceeds less
than the full amount of the then outstanding Indebtedness shall not alter or
modify Mortgagor's obligation to continue to pay the installments of principal,
interest and other charges specified in the Notes and herein. All the proceeds
shall be applied in the order and in the amounts that Mortgagee, in Mortgagee's
sole discretion, may elect, to the payment of principal (whether or not then due
and payable), interest or any sums secured by this Mortgage, or toward payment
to Mortgagor, on such reasonable terms as Mortgagee may specify, to be used for
the sole purpose of altering, restoring or rebuilding any part of the Mortgaged
Property which may have been altered, damaged or destroyed as a result of the
taking, alteration of grade or other injury to the Mortgaged Property. Receipt
of such proceeds by Mortgagee shall not be subject to a prepayment penalty
hereunder or under ant of the Notes.
17. Leases. Mortgagor hereby represents that there are no leases or
agreements to lease all or any part of the Mortgaged Property now in effect
except those leases assigned to Mortgagee by Mortgagor in any Assignment of
Rents and Leases of even date herewith. Mortgagor covenants and agrees that all
future leases for portions of the Mortgaged Property shall include a provision
causing each such lease to be subordinate to this Mortgage.
18. No Other Financing or Loans. Without the prior written consent
of Mortgagee, Mortgagor shall not create or cause or permit to exist any lien
on, or security interest in, Mortgagor's interest in the Mortgaged Property,
including any furniture, fixtures, appliances, equipment, or other items of
personal property which are intended to be or become part of the Mortgaged
Property.
19. No Transfer. For the purpose of protecting Mortgagee's security,
keeping the Mortgaged Property free from subordinate financing liens, and/or
allowing Mortgagee to raise the interest rate and to collect assumption fees or
otherwise change the terms of the Notes upon any sale of the Mortgaged Property.
Any sale, conveyance, further encumbrance, or other transfer of title to the
Mortgaged Property, or any interest therein (whether voluntarily or by operation
of law), without the Mortgagee's prior written consent, shall result in
immediate acceleration of the Indebtedness. Without limiting the generality of
the foregoing, the occurrence at any time of any of the following events,
without Mortgagee's prior written consent, shall be deemed to be an unpermitted
transfer of title to the Mortgaged Property and therefore shall result in
acceleration:
(a) any sale, conveyance, assignment, or other transfer of
(including installment land sale contracts), or the grant of a security interest
in, all or any part of the legal and/or equitable title to the Mortgaged
Property;
(b) if Mortgagor is a corporation, any sale, conveyance,
assignment, or other transfer of, or the grant of a security interest in, any
share of stock of Mortgagor;
(c) if Mortgagor is a partnership, whether general or limited,
any sale, conveyance, assignment, or other transfer of, or the grant of a
security interest in, any general partnership interest in Mortgagor; or
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(d) if Mortgagor is a limited partnership, any sale,
conveyance, assignment or other transfer of, or the grant of a security interest
in, fifty percent (50%) or more of all limited partnership interests in
Mortgagor.
Any consent by the Mortgagee, or any waiver of an event of default,
under this Paragraph 19 shall not constitute a consent to, or waiver of any
right, remedy or power of the Mortgagee upon a subsequent Event of Default under
this Paragraph 19.
20. Year 2000.
(a) Mortgagor represents and warrants to Mortgagee that the
Year 2000 Problem (as defined below) will not result in a Material Adverse
Effect (as defined below).
(b) "Year 2000 Problem" means the risk that computer
applications used by or for the benefit of Mortgagor may be unable to recognize
or perform properly date sensitive functions involving certain dates prior to
and any date after September 9, 1999. "Material Adverse Effect" means (1) a
material adverse change in, or a material effect upon, the operations, business,
properties, condition (financing or otherwise) or prospects of Mortgagor; (2) a
material impairment of the ability of Mortgagor to perform under this Mortgage,
any of the Notes or any of the other loan documents and to avoid any Event of
Default; or (3) a material adverse effect upon (i) the legality, validity,
binding effect or enforceability against Mortgagor of this Mortgage, any of the
Notes or any of the other loan documents, or (ii) the perfection or priority of
any lien granted under this Mortgage, any of the Notes or any of the other loan
documents.
(c) Mortgagor shall take all action necessary to assure that
Mortgagor's computer-based systems are able to effectively process data
including dates on or after September 9, 1999, such that there will be no
Material Adverse Effect.
21. Right to Remedy Defaults. If Mortgagor fails to pay Impositions
or insurance premiums, or fails to make necessary repairs, or permits waste,
Mortgagee, at its election, may make any payment or expenditure and take any
action which Mortgagor should have made or taken, or which Mortgagee deems
advisable to protect the security of this Mortgage or the Mortgaged Property,
without prejudice to any of Mortgagee's rights or remedies available hereunder
or otherwise, at law or in equity. All such sums, as well as costs, advanced by
Mortgagee pursuant to this Mortgage shall be due immediately from Mortgagor to
Mortgagee, shall be secured hereby, and shall bear interest at a rate which
shall be four percent (4%) higher than the then effective rate specified in the
Note from the date of payment by Mortgagee until the date of repayment. In
addition to any other debt or obligation secured hereby, this Mortgage also
secures unpaid balances of advances made with respect to the Mortgaged Property
for the payment of Impositions, insurance premiums, or costs incurred for the
protection of the Mortgaged Property.
22. Events of Default. The following shall constitute Events of
Default hereunder:
(a) Failure of Mortgagor to pay or deposit, as and when due,
any amount: (1) required by any of the Notes or this Mortgage; or (2) due from
Mortgagor to Mortgagee, whether under any of the Notes or any other agreement,
note or instrument now or hereafter existing.
(b) Mortgagor's nonperformance of or noncompliance with any of
the agreements, conditions, covenants, provisions or stipulations contained in
any of the Notes, this Mortgage, or in any other document evidencing or securing
the Indebtedness and the expiration of any applicable cure period.
(c) Fraud or material misrepresentation or material omission
by Mortgagor, or any of its officers, directors, trustees, general partners or
managers in connection with (i) the application for or creation of the
Indebtedness, (ii) any financial statement, rent roll, or other report or
information provided to
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Mortgagee during the term of any of the Notes, or (iii) any request for
Mortgagee's consent to any proposed action.
(d) Any assignment for the benefit of creditors made by
Mortgagor.
(e) Commencement of any proceeding under the Bankruptcy Act or
any law of the United States or of any state relating to insolvency,
receivership or debt adjustment by Mortgagor, or the commencement of any such
proceeding against Mortgagor which results in the institution of any such
proceedings against Mortgagor and is consented to by Mortgagor or remains
undismissed for thirty (30) days, or Mortgagor is adjudicated a bankrupt, or a
trustee or receiver is appointed for any substantial part of Mortgagor's
property, or Mortgagor makes an assignment for the benefit of creditors, admits
in writing an inability to pay debts generally as they become due or becomes
insolvent.
(f) Receipt by Mortgagee of written notice from any person
claiming priority of a lien or encumbrance over the lien of this Mortgage for
any future advances made under any of the Notes.
23. Remedies.
(a) Upon the happening of any Event of Default, the Mortgagee
may, at its option, declare the Indebtedness to be immediately due and payable
without further demand, and may invoke any other remedies permitted by Ohio law
or exercise any and all remedies available to it under the Notes, this Mortgage
or any other document evidencing or securing the Indebtedness.
(b) When the Indebtedness shall become due and payable, either
because of maturity or because of the occurrence of any Event of Default, or
otherwise, as herein provided, then forthwith:
(i) Foreclosure. Mortgagee may institute an action of
mortgage foreclosure against the Mortgaged Property, or take such other action
at law or in equity for the enforcement of this Mortgage and realization on the
mortgage security or any other security herein or elsewhere provided for, as the
law may allow, and may proceed therein to final judgment and execution for the
entire unpaid balance of the Indebtedness, with interest at the then highest
effective rate stipulated in any of the Notes to the date of default, together
with all other sums due by Mortgagor in accordance with the provisions of the
Notes and this Mortgage, including all sums which may have been loaned by
Mortgagee to Mortgagor after the date of this Mortgage, and all sums which may
have been advanced by Mortgagee for taxes, water or sewer rents, charges or
claims, payments on prior liens, insurance or repairs to the Mortgaged Property,
all costs of suit, together with interest at such rate on any judgment obtained
by Mortgagee from and after the date of any Sheriff's sale until actual payment
is made by the Sheriff of the full amount due Mortgagee, and a reasonable
attorney's commission for collection.
(ii) Possession. Mortgagee may enter into possession of
the Mortgaged Property, manage, lease and operate the Mortgaged Property,
collect therefrom all rentals (which term shall also include sums payable for
use and occupancy) and, after deducting all costs of collection and
administration expense, apply the net rentals to any or all of the following in
such order and amounts as Mortgagee, in Mortgagee's sole discretion, may elect:
payment of the Indebtedness, the payment of taxes, water and sewer rents,
charges and claims, insurance premiums and all other carrying charges, and to
the maintenance, repair or restoration of the Mortgaged Property, and on account
and in reduction of the principal or interest, or both, hereby secured.
(iii) Receiver. Mortgagee may apply for, and Mortgagee
as a matter of right, without consideration of the value of the Mortgaged
Property as security for the amount due Mortgagee, or of the solvency of any
person, firm or corporation obligated for the payment of such amount, shall be
entitled to, the appointment by any competent court or tribunal, without prior
demand or notice to any party, of a
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receiver of rents and profits and rental value of the Mortgaged Property,
including possession from Mortgagor if in possession and occupying any portion
of the Mortgaged Property, and in the latter case to require Mortgagor, as a
condition of remaining in possession and occupation, to pay the reasonable
rental value for the use and occupation thereof, with further power to lease and
repair the Mortgaged Property and to renovate same to suit new tenants, and with
such other powers as may be deemed necessary, and such receiver after deducting
all proper charges and expenses attending the execution of the said trust as
receiver, shall each month pay over to Mortgagee the residue of the said rents
and profits and rental value, to be applied by Mortgagee to the payment of the
amount remaining secured hereby, or to any deficiency (whether or not any
judgment therefor may be entered and irrespective of the market value of the
Mortgaged Property) which may exist in the event of foreclosure by sale after
applying the proceeds of the sale of the Mortgaged Property to the payment of
the amount due, including interest, costs and expenses of such foreclosure and
sale, or in the event of strict foreclosure to the payment of any deficiency
existing thereunder. A receiver while in possession of the Mortgaged Property,
shall have the right to make repairs and to make improvements necessary or
advisable in its or his opinion to preserve the Mortgaged Property, or to make
and keep them rentable to the best advantage, and Mortgagee may advance moneys
to a receiver for such purposes. Any moneys so expended or advanced by Mortgagee
or by a receiver shall be repaid so far as possible out of the rents collected
after payment of other expenses properly chargeable against said rents, and any
unpaid balance of moneys so advanced or expended shall be added to and become a
part of the debt secured by this Mortgage and shall accrue interest at the then
highest effective rate stipulated in any of the Notes.
(c) Mortgagee shall have the right, from time to time, to
bring an appropriate action to recover any sums required to be paid by Mortgagor
under the terms of the Notes or this Mortgage, as they become due, without
regard to whether or not the Indebtedness shall be due, and without prejudice to
the right of Mortgagee thereafter to bring an action of mortgage foreclosure, or
any other action, for any default by Mortgagor existing at the time the earlier
action was commenced.
24. Rights and Remedies Cumulative.
(a) The rights and remedies of Mortgagee as provided in this
Mortgage and in the Notes shall be cumulative and concurrent; may be pursued
separately, successively or together against Mortgagor or against the Mortgaged
Property, or both, at the sole discretion of Mortgagee, and may be exercised as
often as occasion therefor shall arise. The failure to exercise any such right
or remedy shall in no event be construed as a waiver or release thereof.
(b) Any failure by Mortgagee to insist upon strict performance
by Mortgagor of any of the terms and provisions of this Mortgage, the Notes or
any other document evidencing or securing the Indebtedness shall not be deemed
to be a waiver of any of the terms or provisions of this Mortgage, any of the
Notes or any other document evidencing or securing the Indebtedness, and
Mortgagee shall have the right thereafter to insist upon strict performance by
Mortgagor of any and all of them.
(c) Neither Mortgagor nor any other person now or hereafter
obligated for payment of all or any part of the sums now or hereafter secured by
this Mortgage shall be relieved of such obligation by reason of the failure of
Mortgagee to comply with any request of Mortgagor or of any other person so
obligated to take action to foreclose on this Mortgage or otherwise enforce any
provisions of this Mortgage or any of the Notes, or by reason of the release,
regardless of consideration, of all or any part of the security held for the
Indebtedness secured by this Mortgage, or by reason of any agreement or
stipulation between any subsequent owner of the Mortgaged Property and Mortgagee
extending the time of payment or modifying the terms of this Mortgage or any of
the Notes without first having obtained the consent of Mortgagor or such other
person; and in the latter event Mortgagor and all such other persons shall
continue to be liable to make payments according to the terms of any such
extension or modification agreement, unless expressly released and discharged in
writing by Mortgagee.
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(d) Mortgagee may release, regardless of consideration, any
part of the security held for the Indebtedness secured by this Mortgage without,
as to the remainder of the security, in any way impairing or affecting the lien
of this Mortgage or its priority over any subordinate lien.
(e) For payment of the Indebtedness secured hereby Mortgagee
may resort to any other security therefor held by Mortgagee in such order and
manner as Mortgagee may elect.
25. Mortgagor's Waivers. To the extent permitted by applicable law,
Mortgagor hereby waives and releases:
(a) all benefits that might accrue to Mortgagor by virtue of
any present or future law exempting the Mortgaged Property, or any part of the
proceeds arising from any sale thereof, from attachment, levy or sale on
execution, or providing for any stay of execution, exemption from civil process
or extension of time for payment, and
(b) unless specifically required herein, all notices of
Mortgagor's default, or of Mortgagee's election to exercise, or Mortgagee's
actual exercise of, any option under any of the Notes or this Mortgage; and
(c) any and all rights to require the marshalling of assets.
26. Counsel Fees. If Mortgagee becomes a party to any suit or
proceeding affecting the Mortgaged Property or title thereto, the lien created
by this Mortgage or Mortgagee's interest therein, or if Mortgagee engages
counsel to collect any conditions, covenants, provisions or stipulations of this
Mortgage or the Loan, Mortgagee's costs, expenses and reasonable counsel fees,
whether or not suit is instituted, shall be paid to Mortgagee by Mortgagor, on
demand, with interest at the then highest effective rate set forth in any of the
Notes, and until paid they shall be deemed to be part of the indebtedness
evidenced by each of the Notes and secured by this Mortgage.
27. Financial Statements. So that Mortgagee will have a full and
clear understanding of the operation of the Mortgaged Property and Mortgagor's
financial standing, within ninety (90) days after the end of each fiscal year of
Mortgagor, Mortgagor shall deliver to Mortgagee (i) an annual operating
statement, including income statement and balance sheet, certified to be true
and correct, prepared in accordance with generally accepted accounting
principles applied on a basis consistent with prior accounting periods and
setting forth in detail all income from the Mortgaged Property by source and all
operating expenses of the Mortgaged Property in an itemized breakdown; (ii) an
annual rent roll for the Mortgaged Property, certified to be true and correct;
and (iii) federal income tax returns and annual financial statements for
Mortgagor prepared in accordance with generally accepted accounting principles
applied on a basis consistent with prior accounting periods. Upon request by
Mortgagee from time to time, at Mortgagee's discretion and in addition to the
annual financial statements described hereinabove, Mortgagor shall deliver to
Mortgagee current operating statements and rent rolls for the Mortgaged
Property, certified by Mortgagor to be true, accurate and correct. Mortgagor
agrees to make the books and accounts relating to the Mortgaged Property
available for inspection by Mortgagee or its representatives upon request at any
time.
28. Further Assurances. From time to time upon the request of
Mortgagee, Mortgagor shall promptly and duly execute, acknowledge and deliver
any and all such further instruments and documents as Mortgagee may deem
necessary or desirable to confirm this Mortgage, to carry out the purpose and
intent hereof or to enable Mortgagee to enforce any of its rights hereunder.
29. Communications. All communications required under this Mortgage
or any of the Notes shall be in writing, and shall be sent by registered or
certified mail, postage prepaid, return receipt requested, addressed to the
Mortgagor, X.X. Xxx 000, Xxxxxxx, Xxxx, 00000 and addressed to Mortgagee, ATTN:
VICE
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PRESIDENT, CORPORATE LENDING, 0000 XXXX XXXXX XXXXXX, XXXXXXXXX, XXXX 00000, or
to such other address as either party may designate from time to time by written
notice to the other in the manner set forth herein. All notices hereunder shall
be deemed for all purposes to have been received by the addressee two (2)
business days after the date of mailing.
30. Amendment. This Mortgage cannot be changed or amended except by
agreement in writing signed by the party against whom enforcement of the change
is sought.
31. Applicable Law. This Mortgage shall be governed by and construed
according to the laws of the State of Ohio.
32. WAIVER OF JURY TRIAL. MORTGAGOR AND MORTGAGEE EACH WAIVE ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INITIATED BY EITHER OF THEM
AGAINST THE OTHER ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL
TO THE RELATIONSHIP ESTABLISHED BETWEEN THE MORTGAGOR AND MORTGAGEE IN
CONNECTION WITH THIS MORTGAGE, THE NOTES, OR ANY OF THE OTHER LOAN DOCUMENTS.
33. Construction. Whenever used in this Mortgage, unless the context
clearly indicates a contrary intent:
(a) The word "Mortgagor" shall mean the entity or entities
which execute this Mortgage and any subsequent owner of the Mortgaged Property
and its/their respective heirs, executors, administrators, successors and
assigns;
(b) The word "Mortgagee" shall mean Dollar Bank, Federal
Savings Bank, or any subsequent holder of this Mortgage;
(c) The word "entity" and the word "person" shall mean
individual, corporation, partnership or unincorporated association;
(d) The use of any gender shall include all genders.
(e) The singular number shall include the plural and the
plural the singular as the context may require.
34. Joint and Several. If "Mortgagor" consists of more than one
person or entity, all obligations, liabilities and duties of Mortgagor hereunder
shall be joint and several and the entities shall be individually and
collectively liable for all such obligations, liabilities and duties.
35. Non-Usury and Severability Provisions. Notwithstanding anything
in this Mortgage, the Notes, or any other document evidencing the Indebtedness
to the contrary, neither the Mortgage nor the Notes shall be deemed to impose on
the Mortgagor any obligation of payment, except to the extent that the same may
be legally enforceable, and any provision to the contrary shall be of no force
or effect. If any term or provision of this Mortgage or the application thereof
to any person, property or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Mortgage, or the application of such term
or provision to persons, properties and circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Mortgage shall be valid and enforceable to the
fullest extent permitted by law.
36. Future Advances. This Mortgage is an Open-End Mortgage in
accordance with Section 5301.232 of the Ohio Revised Code. This Mortgage secures
unpaid balances of loan advances to be made after this Mortgage is delivered to
the county recorder for record. The maximum amount of unpaid balances,
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in the aggregate and exclusive of interest and other advances which may be
outstanding at any time is One Million Four Hundred Thousand and 00/100 Dollars
($1,400,000.00). If and to the extent applicable, Mortgagor hereby waives any
right it has under Section 5301.232(c) of the Ohio Revised Code to limit the
loan indebtedness secured by this Mortgage.
37. Notices/Open-End Mortgage Statute. The written notices provided
for in Section 5301.232 of the Ohio Revised Code from a person claiming priority
of a lien or encumbrance over the lien of this Mortgage for any future advances
made under any of the Notes shall be either personally delivered to a Vice
President of the Corporate Lending Department at Mortgagee's place of business
at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx Xxxx 00000 or sent to Mortgagee by
registered or certified mail, postage prepaid, return receipt requested,
addressed to Mortgagee, c/o Vice President, Corporate Lending Department, 0000
Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000.
38. Priority of Mortgage Lien. Mortgagee, at Mortgagee's option, is
authorized and empowered to do all things provided to be done by a Mortgagee
under Section 1311.14 of the Ohio Revised Code and any present or future
amendments or supplements thereto, for the protection of Mortgagee's interest in
the Mortgaged Property.
39. Captions. The captions preceding the text of the paragraphs or
subparagraphs of this Mortgage are inserted only for convenience of reference
and shall not constitute a part of this Mortgage, nor shall they in any way
affect its meaning, construction or effect.
40. Release. Upon payment of the Indebtedness, Mortgagee shall
discharge this Mortgage. Mortgagor shall pay Mortgagee's reasonable costs
incurred in discharging this Mortgage.
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IN WITNESS WHEREOF, Mortgagor has duly executed this Mortgage the day and
year first above written.
WITNESS: AMERICAN STONE CORPORATION
/s/ Xxxxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------- -------------------------------------
print name: Xxxxx X. Xxxxx
----------------------------
/s/ Xxxxxxx Xxxxxxx Title: President
-------------------------- ---------------------------------
STATE OF Ohio
COUNTY OF Cuyahoga
The foregoing instrument was acknowledged before me this 16th day of February,
2001 , by Xxxxx X. Xxxxx [name], the President [title] of American Stone
Corporation, a Delaware corporation, on behalf of the corporation.
(SEAL)
/s/ Xxxxxxxxx Xxxxxxxxx
----------------------------------------
Notary Public
My commission expires: 9/1/2006
This instrument was prepared by:
Dollar Bank, Federal Savings Bank
0000 Xxxx Xxxxx Xx.
Xxxxxxxxx, Xxxx 00000
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OPEN-END MORTGAGE AND SECURITY AGREEMENT
(Total Principal Indebtedness Not to Exceed $1,400,000.00)
THIS MORTGAGE (hereinafter referred to as "Mortgage") made this 16th
day of February, 2001, between AMERICAN STONE CORPORATION, having an address of
0000 Xxxxxx Xxxx, Xxxxxxx, Xxxx 00000 (hereinafter [jointly and severally]
referred to as the "Mortgagor"), and DOLLAR BANK, FEDERAL SAVINGS BANK, with
offices at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 (hereinafter referred
to as "Mortgagee").
R E C I T A L S:
A. Mortgagor has requested, and Mortgagee has extended, a loan in
the aggregate principal amount of One Million Four Hundred Thousand and 00/100
Dollars ($1,400,000.00) to Mortgagor (hereinafter referred to as the "Loan").
B. The Loan is evidenced by two notes of even date herewith in the
principal amounts of $900,000.00 (the "Term Loan Note") and $500,000.00 (the
"Line of Credit Note"). The Term Note and the Line of Credit Note, together with
any and all amendments, modifications, renewals, extensions, replacements,
restatements, and refinancings thereof are hereinafter collectively referred to
as the "Notes".
C. The Loan has been guaranteed by American Stone Industries, Inc.
(the "Guarantor") pursuant to a Guaranty Agreement With Warrant To Confess
Judgment of even date herewith (the "Guaranty").
D. Mortgagor, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged and as security for: (1) the payment,
performance and observance by Mortgagor of Mortgagor's obligations in connection
with the Loan, including but not limited to principal, interest, late charges
and other obligations under the Notes; (2) the payment by Mortgagor to Mortgagee
of all sums incurred, expended or advanced by Mortgagee pursuant to any
provision of this Mortgage; and (3) the payment, performance and observance by
Mortgagor of each and every other covenant, condition and obligation contained
in this Mortgage or referred to herein, or incurred in connection herewith
(collectively, the "Indebtedness"), Mortgagor grants, conveys, and mortgages
unto Mortgagee all that certain real estate and improvements thereon erected
situate in the Township of Amherst and Township of Brownhelm, County of Lorain
and State of Ohio, and more particularly described on Exhibit "A", attached
hereto and made a part hereof.
TOGETHER WITH all of Mortgagor's right, title and interest now owned
or hereafter acquired in:
(1) all buildings and other improvements erected or hereafter
erected thereon; and
(2) all fixtures, now or at any time hereafter installed in,
attached to or a part of the above described real estate or any buildings and
improvements now or hereafter erected thereon and all replacements thereof and
proceeds thereof; and
(3) any and all tenements, hereditaments and appurtenances belonging
to the real estate or any part thereof hereby mortgaged or intended so to be, or
in any way appertaining thereto, and all streets, alleys, passages, ways, water
courses, and all easements and covenants now existing or hereafter created for
the benefit of Mortgagor or any subsequent owner or tenant of the mortgaged real
estate over ground adjoining the mortgaged real estate and all rights to enforce
the maintenance thereof, and all other rights, liberties and privileges of
whatsoever kind or character, and the reversions and remainders, income, rents,
issue and
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profits arising therefrom, and all the estate, right, title, interest, property,
possession, claim and demand whatsoever, at law or in equity, of Mortgagor in
and to the real estate or any part thereof; and
(4) all proceeds of the conversion, voluntary or involuntary, of any
of the foregoing into cash or liquidated claims, including, without limitation,
proceeds of insurance and condemnation awards; and
(5) all monies due or to become due under, and all right, title and
interest in, to and under, any lease or leases now or hereafter affecting the
aforesaid real estate and improvements; and
All of the above-mentioned real estate, buildings and improvements,
fixtures, tenements, hereditaments and appurtenances, and other property
interests are sometimes collectively referred to herein as the "Mortgaged
Property".
TO HAVE AND TO HOLD the Mortgaged Property hereby conveyed or
mentioned and intended so to be, unto Mortgagee, its successors and assigns to
its own use forever.
PROVIDED ALWAYS, and this instrument is upon the express condition
that, if Mortgagor causes to be paid to Mortgagee all sums payable by Mortgagor
to Mortgagee in accordance with the provisions of each of the Notes and this
Mortgage, at the times and in the manner specified, without deduction, fraud, or
delay, and Mortgagor performs and complies with all the agreements, conditions,
covenants, provisions and stipulations contained herein and in each of the Notes
and this Mortgage, then this Mortgage and the estate hereby granted shall cease
and become void.
MORTGAGOR REPRESENTS, COVENANTS AND WARRANTS to and with Mortgagee
that until the Indebtedness secured hereby is fully repaid:
1. Warranty of Title. Mortgagor generally warrants title to the
Mortgaged Property. Further, Mortgagor warrants that the lien of this Mortgage
is second only to unpaid real property taxes not yet due and payable.
2. Payment and Performance. Mortgagor shall pay to Mortgagee, in
accordance with the terms of each of the Notes, this Mortgage, or any other
instrument evidencing the Indebtedness, all Indebtedness secured hereby and
shall cause performance and compliance with all the agreements, conditions,
covenants, provisions and stipulations of each of the Notes, this Mortgage and
any other instrument evidencing or securing the Indebtedness.
3. Maintenance of Mortgaged Property. Mortgagor shall keep and
maintain or cause to be kept and maintained all buildings and improvements now
or at any time hereafter erected on the Mortgaged Property and the sidewalks and
curbs abutting them, in good order and condition, and will make or cause to be
made, as and when necessary for such purpose, all repairs, renewals and
replacements, structural and nonstructural, exterior and interior, ordinary and
extraordinary, foreseen and unforeseen. Mortgagor shall abstain from and shall
not permit the commission of waste in or about the Mortgaged Property; shall not
remove or demolish, or alter the structural character of any building erected at
any time on the Mortgaged Property, without the prior written consent of
Mortgagee; and shall not permit the Mortgaged Property to become vacant or
unguarded. Mortgagor shall not permit any lien or claim to be filed against
Mortgagor's interest in the Mortgaged Property, or any part thereof.
4. Insurance.
(a) Mortgagor shall keep the Mortgaged Property continuously
insured, in an amount of not less than the cost to replace the Mortgaged
Property or an amount not less than one hundred percent (100%) of the full
insurable value of the Mortgaged Property, whichever is greater, against loss or
damage by
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fire, with extended coverage and against other hazards as Mortgagee may
reasonably require, with an insurance company or companies satisfactory to
Mortgagee, and in such total amounts (other than the foregoing fire and extended
coverage insurance) as Mortgagee may require from time to time. All polices,
including policies for any amounts carried in excess of the required minimum and
policies not specifically required by Mortgagee, shall be in form satisfactory
to Mortgagee, shall be maintained in full force and effect, shall be assigned to
Mortgagee, with premiums prepaid (or subject to a payment plan for the payment
of premium over the term of the policy), as collateral security for payment of
the Indebtedness secured hereby, shall be endorsed with a standard mortgagee
clause in favor of Mortgagee as its interest may appear, not subject to
contribution and shall provide for at least thirty (30) days notice of
cancellation to Mortgagee. Mortgagee's name and address on any policy or
policies of insurance shall appear as: "Dollar Bank, Federal Savings Bank, X.X.
Xxx 0000, Xxxxxxxxx, Xxxx 00000-0000."
(b) If the insurance, or any part thereof, shall expire, or be
withdrawn, or become void or unavailable by Mortgagor's breach of any condition
thereof, or if there is the failure or impairment of the capital of any company
in which the insurance may then be carried, or if for any reason in the
reasonable opinion of Mortgagee the insurance shall be unsatisfactory to
Mortgagee, Mortgagor shall place new insurance on the Mortgaged Property,
satisfactory to Mortgagee. In the event that Mortgagor fails or refuses to place
such new insurance on the Mortgaged Property, or fails or refuses to place such
new insurance on the Mortgaged Property which is satisfactory to Mortgagee, then
Mortgagee may obtain such insurance as Mortgagee deems necessary to satisfy the
terms and conditions of this Mortgage. In such event, the cost of such insurance
plus a reasonable amount to reimburse Mortgagee for its administrative expenses
in obtaining such insurance, shall be immediately paid to Mortgagee by
Mortgagor. In the event that such costs and expenses are not immediately paid to
Mortgagee by Mortgagor, then the amount of such costs and expenses shall be
added to the outstanding principal balance of the Indebtedness hereby secured,
shall accrue interest thereon at the then highest effective rate set forth in
any of the Notes and shall be secured by this Mortgage.
(c) All renewal policies, with premiums paid (or subject to a
payment plan for the payment of premium over the term of the policy), shall be
delivered to Mortgagee at least fifteen (15) days before expiration of the old
policies.
(d) In the event of loss, Mortgagor will give immediate notice
thereof to Mortgagee, and Mortgagee may make proof of loss if not made promptly
by Mortgagor. Each insurance company concerned is hereby authorized and directed
to make payment under such insurance, including return of unearned premiums,
directly to Mortgagee instead of to Mortgagor and Mortgagee jointly, and
Mortgagor appoints Mortgagee, irrevocably, as Mortgagor's attorney-in-fact to
endorse any draft therefor. Mortgagee shall have the right to retain and apply
the proceeds of any such insurance, at its election, to reduction of the
Indebtedness secured hereby, or to restoration or repair of the property
damaged. If Mortgagee becomes the owner of the Mortgaged Property or any part
thereof by foreclosure or otherwise, such policies, including all right, title
and interest of Mortgagor thereunder, shall become the absolute property of
Mortgagee.
(e) Mortgagor shall also maintain comprehensive general
liability insurance in an amount of not less than One Million Dollars
($1,000,000), worker's compensation insurance, including employer's liability
insurance, in amounts and form as directed by applicable state laws and
regulations, and comprehensive automobile liability insurance. Mortgagor shall
provide evidence of such liability insurance policies to Mortgagee and such
policies shall name Mortgagee as Certificate Holder.
5. Taxes and Other Charges. Mortgagor shall pay when due and payable
and before interest or penalties are due thereon (the "Due Date"), without any
deduction, defalcation or abatement, all taxes, assessments, water and sewer
rents and all other charges or claims ("Impositions") which may be assessed,
levied, or filed at any time against Mortgagor, the Mortgaged Property or any
part thereof or against the interest of Mortgagee therein, or which by any
present or future law may have priority over the Indebtedness secured hereby
either in lien or in distribution out of the proceeds of any judicial sale; and
Mortgagor shall
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produce to Mortgagee not later than the Due Date receipts for the payment
thereof. Provided, however, that if Mortgagor shall have deposited with
Mortgagee before the due date thereof sums sufficient to pay any such taxes,
assessments, water and sewer rents, charges or claims following a request by
Mortgagee for such deposit, and an Event of Default (as defined below) has not
occurred and is not continuing, they shall be paid by Mortgagee. No credit shall
be claimed or allowed on the interest payable on the Indebtedness because of any
taxes or other charges paid.
6. Installments for Taxes and Other Charges. Without limiting the
effect of Paragraph 5 hereof and if so requested by Mortgagee, Mortgagor shall
pay to Mortgagee monthly, an amount equal to one-twelfth (1/12) of the annual
real estate taxes, and upon written request of Mortgagee, Mortgagor shall pay to
Mortgagee monthly, an amount equal to one-twelfth (1/12) of the annual insurance
premiums, water and sewer rents, any special assessments, charges or claims and
any other item which at any time may be or become a lien upon the Mortgaged
Property prior to the lien of this Mortgage; and on demand from time to time
Mortgagor shall pay to Mortgagee any additional sums necessary to pay the real
estate taxes, and above identified items, all as estimated by Mortgagee; the
amounts so paid shall be security for the real estate taxes, and above
identified items and shall be used in payment thereof if an Event of Default (as
defined below) has not occurred and is not continuing. No amount so paid shall
be deemed to be trust funds but may be commingled with general funds of
Mortgagee, and no interest shall be payable thereon unless required pursuant to
applicable law. If, pursuant to any provision of this Mortgage, the Indebtedness
becomes due and payable, Mortgagee shall have the right, at its election to
apply any amount so held against the entire Indebtedness secured hereby. At
Mortgagee's option, Mortgagee from time to time may waive, and after any such
waiver may reinstate, the provisions of this paragraph requiring the monthly
payments.
7. Partnership or Corporate Existence - Taxes. If Mortgagor or any
successor or grantee of Mortgagor is a partnership, whether general or limited,
or a corporation, it shall keep in full effect its valid existence and rights as
a partnership or a corporation, as the case may be, under the laws of the state
of its formation or incorporation and its right to own property and transact
business in the state in which the Mortgaged Property is situated during the
entire time that it has any ownership interest in the Mortgaged Property. For
all periods during which title to the Mortgaged Property or any part thereof
shall be held by a corporation, association or partnership subject to corporate
taxes or taxes similar to corporate taxes, Mortgagor shall file returns for such
taxes with the proper authorities, bureaus or departments and it shall pay, when
due and payable and before interest or penalties are due thereon, all taxes
owing by Mortgagor to the United States, to such state of incorporation and to
the state in which the Mortgaged Property is situated and any political
subdivision thereof. Mortgagor shall produce to Mortgagee receipts showing
payment of any and all such taxes, charges or assessments prior to the last
dates upon which such taxes, charges or assessments are payable without interest
or penalty charges, and within ten (10) days of receipt thereof all settlements,
notices of deficiency or overassessment and any other notices pertaining to
Mortgagor's tax liability, which may be issued by the United States, such state
of incorporation, the state in which the Mortgaged Property is situated and any
political subdivision thereof.
8. Regulated Materials. Mortgagor covenants and represents (1) that
Mortgagor will not cause or permit the Mortgaged Property to contain, and that
the Mortgaged Property does not contain (a) asbestos in any form; (b) urea
formaldehyde foam insulation; (c) transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls in excess of 50
parts per million; or (d) any other chemical, material, air pollutant, toxic
pollutant, waste, or substance that is (i) regulated as toxic or hazardous or
exposure to which is prohibited, limited or regulated by the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response,
Compensation and Liability Act, the Hazardous Materials Transportation Act, the
Toxic Substances Control Act, the Clean Air Act, and the Clean Water Act, or any
amendment thereto, or any other federal, state, county, regional, local, or
other governmental statute, regulation, or authority, or which, even if not so
regulated, may or could pose a hazard to the health and safety of the occupants
of the Mortgaged Property or the owners of property adjacent to the Mortgaged
Property and is either (ii) present in amounts in excess of that permitted or
deemed safe under
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applicable law or (iii) handled, stored or otherwise used in any way that is
prohibited or deemed unsafe under applicable law. (The substances described in
(a), (b), (c) or (d) above are referred to collectively herein as "Regulated
Materials"); (2) that the Mortgaged Property does not contain any underground or
above ground storage tanks; (3) that the Mortgaged Property is not now being
used nor has the Mortgaged Property ever been used for any activities involving,
directly or indirectly, the use, generation, treatment, storage, transportation,
or disposal of any Regulated Materials; (4) that neither the Mortgaged Property
nor Mortgagor is subject to any existing, pending, or threatened investigation
or inquiry by any governmental authority, or any remedial obligations under any
applicable laws, rules, or regulations pertaining to health or the environment;
(5) that Mortgagor shall not permit any environmental liens, whether federal,
state or local in nature, to be placed on or against the Mortgaged Property; and
(6) that Mortgagor is not subject to any environmental liens or enforcement
orders by any competent authority for any activity or concerning any property
located off-site from the Mortgaged Property that would impair Mortgagor from
performing any of Mortgagor's obligations under any of the Notes or hereunder.
Mortgagor shall not install, store, use, treat, transport, or
dispose (or knowingly permit or acquiesce in the installation, storage, use,
treatment, transportation or disposal by Mortgagor, its agents, employees,
independent contractors or tenants) on the Mortgaged Property of any Regulated
Materials. In the event of any such installation, storage, use, treatment,
presence, transportation or disposal, whether previously existing or hereafter
occurring, and whether by Mortgagor or any predecessor in title, or any
employees, agents, contractors or third parties, and whether or not known of by
Mortgagor or knowingly permitted or acquiesced in by Mortgagor, Mortgagor shall
remove any such Regulated Materials (other than asbestos, which shall only be
removed (i) if required to comply with this paragraph or (ii) if required by
law, rule, regulation or order of competent authority), and shall comply with
the regulations or orders of any competent authority, including, but not limited
to, those laws and regulations dealing with disposal of Regulated Materials. If
Mortgagor shall (i) fail to proceed with such removal or (ii) fail to comply
with any such regulations or orders issued by any competent authority as soon as
reasonably possible, and in any case within the cure period permitted under the
applicable federal, state or local regulation or order, such failure shall, at
Mortgagee's option, constitute an Event of Default hereunder. Nothing hereunder
shall obligate Mortgagee to advance any funds hereunder for the removal of
Regulated Materials or the compliance with any such regulations or orders of any
governmental authority relating to Regulated Materials found on the Mortgaged
Property.
Mortgagor shall indemnify Mortgagee and hold Mortgagee, its
directors, officers, employees, agents, successors and assigns harmless from and
against all loss, damage, and expense (including, without limitation, attorney's
fees, environmental expert's fees, and costs incurred in the investigation,
defense, and settlement of claims, and for the removal of any governmental
environmental liens placed against the Mortgaged Property) that Mortgagee may
incur as a result of or in connection with the assertion against Mortgagee of
any claim relating directly or indirectly, in whole or in part, to the use,
presence, removal, release, storage, generation, disposal or manufacture of any
Regulated Materials, including, but not limited to, any claims filed against
Mortgagor by any third parties by reason of Mortgagor's failure concerning
Regulated Materials that have been paid by Mortgagee, or relating to any
activity on or off the Mortgaged Property, previously existing or hereafter
occurring, and whether such activity was carried on by Mortgagor or any
predecessor in title or any employees, agents, contractors or third parties, if
such activity involved Regulated Materials, in whole or in part, directly or
indirectly, or noncompliance with any federal, state, or local laws, rules,
regulations, or orders relating thereto.
Mortgagor shall promptly notify Mortgagee in writing of any order or
pending or threatened action, investigation or inquiry by any regulatory agency
or other governmental body, or any claims made by any third party, relating to
Regulated Materials in, under or upon the Mortgaged Property or emanations from
the Mortgaged Property, and shall promptly furnish Mortgagee with copies of any
correspondence or legal pleadings in connection therewith.
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Mortgagee shall have the right to join and participate as a party in
any legal proceedings or actions initiated with respect to any claims made or
threatened by any third party against Mortgagor or the Mortgaged Property
relating to damages, contributions, cost recovery compensation, loss or injury
resulting from any Regulated Materials affecting the Mortgaged Property, and to
have its reasonable attorneys' fees in connection therewith paid by Mortgagor.
Further, without Mortgagee's prior written consent, Mortgagor shall not enter
into any settlement agreement, consent decree or other compromise with respect
to any claims based on Regulated Materials, which settlement, consent or
compromise might, in Mortgagee's judgment, impair the value of Mortgagee's
security hereunder.
In addition, Mortgagee shall have the right, but shall not be
obligated, to notify any state, federal or local governmental authority of
information that may come to its attention with respect to Regulated Materials
in, under, upon or emanating from the Mortgaged Property, and Mortgagor
irrevocably releases Mortgagee from any claims of loss, damage, liability,
expense or injury relating to or arising from, directly or indirectly, any such
disclosure.
The liability of Mortgagor to Mortgagee under the covenants of this
Paragraph 8 shall survive any foreclosure of this Mortgage or any transfer of
the Mortgaged Property by deed in lieu of foreclosure.
At any time hereafter terminating only upon repayment in full of the
indebtedness secured hereby (and for such purpose of repayment from proceeds of
foreclosure sale shall not be deemed repayment of such indebtedness), Mortgagee
may require Mortgagor to provide Mortgagee, at the expense of Mortgagor, an
inspection or audit of the Mortgaged Property, prepared by a qualified
consultant approved by Mortgagee, in form and substance satisfactory to
Mortgagee, certifying as to the presence or absence of Regulated Materials, or
to permit Mortgagee to so inspect or audit the Mortgaged Property at Mortgagor's
expense, and Mortgagor hereby grants to Mortgagee, its employees, agents and
independent contractors, the right to enter upon the Mortgaged Property for the
purpose of conducting tests, soil borings, the installation of monitoring xxxxx
and such other tests as Mortgagee deems necessary or desirable.
If the Mortgaged Property now or hereafter contains any material or
product containing more than 0.1 percent asbestos by weight, Mortgagor shall, at
Mortgagor's expense, prepare, implement, and comply with on an ongoing basis a
written asbestos operations and maintenance program prepared by a qualified
environmental consultant. Such program shall assure that (a) all persons are
protected from any release of asbestos fibers, and (b) asbestos fibers are not
distributed or released on the Mortgaged Property during maintenance, repairs,
alterations or improvements. Any removal of asbestos or asbestos-containing
material or any work on the Mortgaged Property affecting asbestos or asbestos
containing-material shall be at Mortgagor's sole expense, and shall be
accomplished in full accordance with this program, and in compliance with all
federal, state and local laws, ordinances and regulations. Mortgagor shall
deliver to Mortgagee a certificate executed by a certified asbestos removal
contractor indicating that all asbestos has been removed and disposed of in
accordance with all applicable laws, ordinances and regulations pertaining
thereto. Mortgagor acknowledges that Mortgagor shall remain liable to Mortgagee
under the covenants of this Paragraph 8, regardless of the removal of asbestos
from the Mortgaged Property pursuant to this Paragraph 8, for the presence of
asbestos prior to its removal, for the asbestos removal and disposal itself, or
for any failure of Mortgagor or the contractor to remove asbestos.
9. Security Agreement. This Mortgage is also a security agreement
under the Uniform Commercial Code for any of the Mortgaged Property which, under
applicable law, may be subject to a security interest under the Uniform
Commercial Code, whether acquired now or in the future, and all products and
cash and non-cash proceeds thereof (collectively, the "Collateral") and
Mortgagor hereby grants Mortgagee a security interest in the Collateral. Without
the prior written consent of Mortgagee, Mortgagor shall not create or permit to
exist any other lien or security interest in any of the Collateral. If an Event
of Default (as defined below) has occurred and is continuing, Mortgagee has the
remedies of a secured party under the Uniform Commercial Code, in addition to
all remedies provided by this Mortgage or existing under
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applicable law. In exercising any remedies, Mortgagee may exercise its remedies
against the Collateral separately or together, and in any order, without in any
way affecting the availability of its other remedies.
10. Financing Statement. This Mortgage and security agreement is
also a financing statement. Mortgagor is the debtor and Mortgagee is the secured
party. The address of Mortgagee set forth at the beginning of this Mortgage is
an address of the secured party from which information concerning the security
interest may be obtained. The address of Mortgagor set forth at the beginning of
this Mortgage is a mailing address of the debtor. The description of the
Mortgaged Property includes goods which are or are to become fixtures related to
the real estate described in this Mortgage. The record owner of such real estate
is Mortgagor.
11. Compliance with Laws and Regulations. Mortgagor shall comply
with all requirements of board of fire underwriters or insurance companies, and
all laws, ordinances, regulations and orders of all Federal, state, municipal
and other governmental authorities relating to the Mortgaged Property and the
use and occupancy thereof, including without limitation fair housing laws to the
extent applicable.
12. Flood Determination. Mortgagee will have a flood determination
performed by an outside vendor to determine whether the Mortgaged Property is
designated as being situated in a Special Flood Hazard Area ("SFHA") according
to the Federal Emergency Management Agency ("FEMA"). If the Mortgaged Property
or any portion of the Mortgaged Property is located in a SFHA and the community
in which the Mortgaged Property is situated participates in the National Flood
Insurance Program ("NFIP"), Mortgagor shall purchase and maintain flood
insurance during the term of this Mortgage in an amount equal to the lesser of
the aggregate balance of the Notes or the maximum amount available under the
NFIP. If the Mortgaged Property is not located in a SFHA, if the community does
not participate in the NFIP or if the aggregate balance of the Notes is greater
than the maximum amount available under the NFIP, Mortgagee, at its sole
discretion, may require that Mortgagor purchase and maintain such flood
insurance.
13. Inspection. Mortgagee and any persons authorized by Mortgagee
shall have the right at any time during business hours, upon reasonable notice
to Mortgagor, to enter the Mortgaged Property to inspect and photograph its
condition and state of repair and for the purpose of testing materials and
substances in and about the Mortgaged Property, including soils, for the
presence of Regulated Materials or waste therefrom.
14. Declaration of No Set-Off. Within ten (10) days after requested
to do so by Mortgagee, Mortgagor shall certify to Mortgagee or to any proposed
assignee of this Mortgage, in writing duly acknowledged, the amount of
principal, interest and other charges then owing on the obligation secured by
this Mortgage and by prior liens, if any, and whether there are any set-offs or
defenses against them.
15. Required Notices. Mortgagor shall notify Mortgagee promptly of
the occurrence of any of the following:
(a) a fire or other casualty causing damage to the Mortgaged
Property,
(b) receipt of written notice of condemnation or threatened
condemnation of the Mortgaged Property, or any part thereof,
(c) receipt of written notice from any governmental authority
relating to any material violation of structure, use or occupancy laws affecting
the Mortgaged Property,
(d) substantial change in the occupancy of the Mortgaged
Property,
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(e) commencement of any litigation affecting the Mortgaged
Property involving a claim in an amount in excess of Ten Thousand Dollars
($10,000).
16. Condemnation. In the event of any condemnation or taking of any
part of the Mortgaged Property by eminent domain, alteration of the grade of any
street, or other injury to or decrease in the value of the Mortgaged Property by
any public or quasi-public authority or corporation, all proceeds (that is, the
award or agreed compensation for the damage sustained) allocable to Mortgagor
shall be applicable first to payment of the Indebtedness secured hereby. No
settlement for the damages sustained shall be made by Mortgagor without
Mortgagee's prior written approval. Receipt by Mortgagee of any proceeds less
than the full amount of the then outstanding Indebtedness shall not alter or
modify Mortgagor's obligation to continue to pay the installments of principal,
interest and other charges specified in the Notes and herein. All the proceeds
shall be applied in the order and in the amounts that Mortgagee, in Mortgagee's
sole discretion, may elect, to the payment of principal (whether or not then due
and payable), interest or any sums secured by this Mortgage, or toward payment
to Mortgagor, on such reasonable terms as Mortgagee may specify, to be used for
the sole purpose of altering, restoring or rebuilding any part of the Mortgaged
Property which may have been altered, damaged or destroyed as a result of the
taking, alteration of grade or other injury to the Mortgaged Property. Receipt
of such proceeds by Mortgagee shall not be subject to a prepayment penalty
hereunder or under ant of the Notes.
17. Leases. Mortgagor hereby represents that there are no leases or
agreements to lease all or any part of the Mortgaged Property now in effect
except those leases assigned to Mortgagee by Mortgagor in any Assignment of
Rents and Leases of even date herewith. Mortgagor covenants and agrees that all
future leases for portions of the Mortgaged Property shall include a provision
causing each such lease to be subordinate to this Mortgage.
18. No Other Financing or Loans. Without the prior written consent
of Mortgagee, Mortgagor shall not create or cause or permit to exist any lien
on, or security interest in, Mortgagor's interest in the Mortgaged Property,
including any furniture, fixtures, appliances, equipment, or other items of
personal property which are intended to be or become part of the Mortgaged
Property.
19. No Transfer. For the purpose of protecting Mortgagee's security,
keeping the Mortgaged Property free from subordinate financing liens, and/or
allowing Mortgagee to raise the interest rate and to collect assumption fees or
otherwise change the terms of the Notes upon any sale of the Mortgaged Property.
Any sale, conveyance, further encumbrance, or other transfer of title to the
Mortgaged Property, or any interest therein (whether voluntarily or by operation
of law), without the Mortgagee's prior written consent, shall result in
immediate acceleration of the Indebtedness. Without limiting the generality of
the foregoing, the occurrence at any time of any of the following events,
without Mortgagee's prior written consent, shall be deemed to be an unpermitted
transfer of title to the Mortgaged Property and therefore shall result in
acceleration:
(a) any sale, conveyance, assignment, or other transfer of
(including installment land sale contracts), or the grant of a security interest
in, all or any part of the legal and/or equitable title to the Mortgaged
Property;
(b) if Mortgagor is a corporation, any sale, conveyance,
assignment, or other transfer of, or the grant of a security interest in, any
share of stock of Mortgagor;
(c) if Mortgagor is a partnership, whether general or limited,
any sale, conveyance, assignment, or other transfer of, or the grant of a
security interest in, any general partnership interest in Mortgagor; or
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(d) if Mortgagor is a limited partnership, any sale,
conveyance, assignment or other transfer of, or the grant of a security interest
in, fifty percent (50%) or more of all limited partnership interests in
Mortgagor.
Any consent by the Mortgagee, or any waiver of an event of default,
under this Paragraph 19 shall not constitute a consent to, or waiver of any
right, remedy or power of the Mortgagee upon a subsequent Event of Default under
this Paragraph 19.
20. Year 2000.
(a) Mortgagor represents and warrants to Mortgagee that the
Year 2000 Problem (as defined below) will not result in a Material Adverse
Effect (as defined below).
(b) "Year 2000 Problem" means the risk that computer
applications used by or for the benefit of Mortgagor may be unable to recognize
or perform properly date sensitive functions involving certain dates prior to
and any date after September 9, 1999. "Material Adverse Effect" means (1) a
material adverse change in, or a material effect upon, the operations, business,
properties, condition (financing or otherwise) or prospects of Mortgagor; (2) a
material impairment of the ability of Mortgagor to perform under this Mortgage,
any of the Notes or any of the other loan documents and to avoid any Event of
Default; or (3) a material adverse effect upon (i) the legality, validity,
binding effect or enforceability against Mortgagor of this Mortgage, any of the
Notes or any of the other loan documents, or (ii) the perfection or priority of
any lien granted under this Mortgage, any of the Notes or any of the other loan
documents.
(c) Mortgagor shall take all action necessary to assure that
Mortgagor's computer-based systems are able to effectively process data
including dates on or after September 9, 1999, such that there will be no
Material Adverse Effect.
21. Right to Remedy Defaults. If Mortgagor fails to pay Impositions
or insurance premiums, or fails to make necessary repairs, or permits waste,
Mortgagee, at its election, may make any payment or expenditure and take any
action which Mortgagor should have made or taken, or which Mortgagee deems
advisable to protect the security of this Mortgage or the Mortgaged Property,
without prejudice to any of Mortgagee's rights or remedies available hereunder
or otherwise, at law or in equity. All such sums, as well as costs, advanced by
Mortgagee pursuant to this Mortgage shall be due immediately from Mortgagor to
Mortgagee, shall be secured hereby, and shall bear interest at a rate which
shall be four percent (4%) higher than the then effective rate specified in the
Note from the date of payment by Mortgagee until the date of repayment. In
addition to any other debt or obligation secured hereby, this Mortgage also
secures unpaid balances of advances made with respect to the Mortgaged Property
for the payment of Impositions, insurance premiums, or costs incurred for the
protection of the Mortgaged Property.
22. Events of Default. The following shall constitute Events of
Default hereunder:
(a) Failure of Mortgagor to pay or deposit, as and when due,
any amount: (1) required by any of the Notes or this Mortgage; or (2) due from
Mortgagor to Mortgagee, whether under any of the Notes or any other agreement,
note or instrument now or hereafter existing.
(b) Mortgagor's nonperformance of or noncompliance with any of
the agreements, conditions, covenants, provisions or stipulations contained in
any of the Notes, this Mortgage, or in any other document evidencing or securing
the Indebtedness and the expiration of any applicable cure period.
(c) Fraud or material misrepresentation or material omission
by Mortgagor, or any of its officers, directors, trustees, general partners or
managers in connection with (i) the application for or creation of the
Indebtedness, (ii) any financial statement, rent roll, or other report or
information provided to
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Mortgagee during the term of any of the Notes, or (iii) any request for
Mortgagee's consent to any proposed action.
(d) Any assignment for the benefit of creditors made by
Mortgagor.
(e) Commencement of any proceeding under the Bankruptcy Act or
any law of the United States or of any state relating to insolvency,
receivership or debt adjustment by Mortgagor, or the commencement of any such
proceeding against Mortgagor which results in the institution of any such
proceedings against Mortgagor and is consented to by Mortgagor or remains
undismissed for thirty (30) days, or Mortgagor is adjudicated a bankrupt, or a
trustee or receiver is appointed for any substantial part of Mortgagor's
property, or Mortgagor makes an assignment for the benefit of creditors, admits
in writing an inability to pay debts generally as they become due or becomes
insolvent.
(f) Receipt by Mortgagee of written notice from any person
claiming priority of a lien or encumbrance over the lien of this Mortgage for
any future advances made under any of the Notes.
23. Remedies.
(a) Upon the happening of any Event of Default, the Mortgagee
may, at its option, declare the Indebtedness to be immediately due and payable
without further demand, and may invoke any other remedies permitted by Ohio law
or exercise any and all remedies available to it under the Notes, this Mortgage
or any other document evidencing or securing the Indebtedness.
(b) When the Indebtedness shall become due and payable, either
because of maturity or because of the occurrence of any Event of Default, or
otherwise, as herein provided, then forthwith:
(i) Foreclosure. Mortgagee may institute an action of
mortgage foreclosure against the Mortgaged Property, or take such other action
at law or in equity for the enforcement of this Mortgage and realization on the
mortgage security or any other security herein or elsewhere provided for, as the
law may allow, and may proceed therein to final judgment and execution for the
entire unpaid balance of the Indebtedness, with interest at the then highest
effective rate stipulated in any of the Notes to the date of default, together
with all other sums due by Mortgagor in accordance with the provisions of the
Notes and this Mortgage, including all sums which may have been loaned by
Mortgagee to Mortgagor after the date of this Mortgage, and all sums which may
have been advanced by Mortgagee for taxes, water or sewer rents, charges or
claims, payments on prior liens, insurance or repairs to the Mortgaged Property,
all costs of suit, together with interest at such rate on any judgment obtained
by Mortgagee from and after the date of any Sheriff's sale until actual payment
is made by the Sheriff of the full amount due Mortgagee, and a reasonable
attorney's commission for collection.
(ii) Possession. Mortgagee may enter into possession of
the Mortgaged Property, manage, lease and operate the Mortgaged Property,
collect therefrom all rentals (which term shall also include sums payable for
use and occupancy) and, after deducting all costs of collection and
administration expense, apply the net rentals to any or all of the following in
such order and amounts as Mortgagee, in Mortgagee's sole discretion, may elect:
payment of the Indebtedness, the payment of taxes, water and sewer rents,
charges and claims, insurance premiums and all other carrying charges, and to
the maintenance, repair or restoration of the Mortgaged Property, and on account
and in reduction of the principal or interest, or both, hereby secured.
(iii) Receiver. Mortgagee may apply for, and Mortgagee
as a matter of right, without consideration of the value of the Mortgaged
Property as security for the amount due Mortgagee, or of the solvency of any
person, firm or corporation obligated for the payment of such amount, shall be
entitled to, the appointment by any competent court or tribunal, without prior
demand or notice to any party, of a
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receiver of rents and profits and rental value of the Mortgaged Property,
including possession from Mortgagor if in possession and occupying any portion
of the Mortgaged Property, and in the latter case to require Mortgagor, as a
condition of remaining in possession and occupation, to pay the reasonable
rental value for the use and occupation thereof, with further power to lease and
repair the Mortgaged Property and to renovate same to suit new tenants, and with
such other powers as may be deemed necessary, and such receiver after deducting
all proper charges and expenses attending the execution of the said trust as
receiver, shall each month pay over to Mortgagee the residue of the said rents
and profits and rental value, to be applied by Mortgagee to the payment of the
amount remaining secured hereby, or to any deficiency (whether or not any
judgment therefor may be entered and irrespective of the market value of the
Mortgaged Property) which may exist in the event of foreclosure by sale after
applying the proceeds of the sale of the Mortgaged Property to the payment of
the amount due, including interest, costs and expenses of such foreclosure and
sale, or in the event of strict foreclosure to the payment of any deficiency
existing thereunder. A receiver while in possession of the Mortgaged Property,
shall have the right to make repairs and to make improvements necessary or
advisable in its or his opinion to preserve the Mortgaged Property, or to make
and keep them rentable to the best advantage, and Mortgagee may advance moneys
to a receiver for such purposes. Any moneys so expended or advanced by Mortgagee
or by a receiver shall be repaid so far as possible out of the rents collected
after payment of other expenses properly chargeable against said rents, and any
unpaid balance of moneys so advanced or expended shall be added to and become a
part of the debt secured by this Mortgage and shall accrue interest at the then
highest effective rate stipulated in any of the Notes.
(c) Mortgagee shall have the right, from time to time, to
bring an appropriate action to recover any sums required to be paid by Mortgagor
under the terms of the Notes or this Mortgage, as they become due, without
regard to whether or not the Indebtedness shall be due, and without prejudice to
the right of Mortgagee thereafter to bring an action of mortgage foreclosure, or
any other action, for any default by Mortgagor existing at the time the earlier
action was commenced.
24. Rights and Remedies Cumulative.
(a) The rights and remedies of Mortgagee as provided in this
Mortgage and in the Notes shall be cumulative and concurrent; may be pursued
separately, successively or together against Mortgagor or against the Mortgaged
Property, or both, at the sole discretion of Mortgagee, and may be exercised as
often as occasion therefor shall arise. The failure to exercise any such right
or remedy shall in no event be construed as a waiver or release thereof.
(b) Any failure by Mortgagee to insist upon strict performance
by Mortgagor of any of the terms and provisions of this Mortgage, the Notes or
any other document evidencing or securing the Indebtedness shall not be deemed
to be a waiver of any of the terms or provisions of this Mortgage, any of the
Notes or any other document evidencing or securing the Indebtedness, and
Mortgagee shall have the right thereafter to insist upon strict performance by
Mortgagor of any and all of them.
(c) Neither Mortgagor nor any other person now or hereafter
obligated for payment of all or any part of the sums now or hereafter secured by
this Mortgage shall be relieved of such obligation by reason of the failure of
Mortgagee to comply with any request of Mortgagor or of any other person so
obligated to take action to foreclose on this Mortgage or otherwise enforce any
provisions of this Mortgage or any of the Notes, or by reason of the release,
regardless of consideration, of all or any part of the security held for the
Indebtedness secured by this Mortgage, or by reason of any agreement or
stipulation between any subsequent owner of the Mortgaged Property and Mortgagee
extending the time of payment or modifying the terms of this Mortgage or any of
the Notes without first having obtained the consent of Mortgagor or such other
person; and in the latter event Mortgagor and all such other persons shall
continue to be liable to make payments according to the terms of any such
extension or modification agreement, unless expressly released and discharged in
writing by Mortgagee.
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(d) Mortgagee may release, regardless of consideration, any
part of the security held for the Indebtedness secured by this Mortgage without,
as to the remainder of the security, in any way impairing or affecting the lien
of this Mortgage or its priority over any subordinate lien.
(e) For payment of the Indebtedness secured hereby Mortgagee
may resort to any other security therefor held by Mortgagee in such order and
manner as Mortgagee may elect.
25. Mortgagor's Waivers. To the extent permitted by applicable law,
Mortgagor hereby waives and releases:
(a) all benefits that might accrue to Mortgagor by virtue of
any present or future law exempting the Mortgaged Property, or any part of the
proceeds arising from any sale thereof, from attachment, levy or sale on
execution, or providing for any stay of execution, exemption from civil process
or extension of time for payment, and
(b) unless specifically required herein, all notices of
Mortgagor's default, or of Mortgagee's election to exercise, or Mortgagee's
actual exercise of, any option under any of the Notes or this Mortgage; and
(c) any and all rights to require the marshalling of assets.
26. Counsel Fees. If Mortgagee becomes a party to any suit or
proceeding affecting the Mortgaged Property or title thereto, the lien created
by this Mortgage or Mortgagee's interest therein, or if Mortgagee engages
counsel to collect any conditions, covenants, provisions or stipulations of this
Mortgage or the Loan, Mortgagee's costs, expenses and reasonable counsel fees,
whether or not suit is instituted, shall be paid to Mortgagee by Mortgagor, on
demand, with interest at the then highest effective rate set forth in any of the
Notes, and until paid they shall be deemed to be part of the indebtedness
evidenced by each of the Notes and secured by this Mortgage.
27. Financial Statements. So that Mortgagee will have a full and
clear understanding of the operation of the Mortgaged Property and Mortgagor's
financial standing, within ninety (90) days after the end of each fiscal year of
Mortgagor, Mortgagor shall deliver to Mortgagee (i) an annual operating
statement, including income statement and balance sheet, certified to be true
and correct, prepared in accordance with generally accepted accounting
principles applied on a basis consistent with prior accounting periods and
setting forth in detail all income from the Mortgaged Property by source and all
operating expenses of the Mortgaged Property in an itemized breakdown; (ii) an
annual rent roll for the Mortgaged Property, certified to be true and correct;
and (iii) federal income tax returns and annual financial statements for
Mortgagor prepared in accordance with generally accepted accounting principles
applied on a basis consistent with prior accounting periods. Upon request by
Mortgagee from time to time, at Mortgagee's discretion and in addition to the
annual financial statements described hereinabove, Mortgagor shall deliver to
Mortgagee current operating statements and rent rolls for the Mortgaged
Property, certified by Mortgagor to be true, accurate and correct. Mortgagor
agrees to make the books and accounts relating to the Mortgaged Property
available for inspection by Mortgagee or its representatives upon request at any
time.
28. Further Assurances. From time to time upon the request of
Mortgagee, Mortgagor shall promptly and duly execute, acknowledge and deliver
any and all such further instruments and documents as Mortgagee may deem
necessary or desirable to confirm this Mortgage, to carry out the purpose and
intent hereof or to enable Mortgagee to enforce any of its rights hereunder.
29. Communications. All communications required under this Mortgage
or any of the Notes shall be in writing, and shall be sent by registered or
certified mail, postage prepaid, return receipt requested, addressed to the
Mortgagor, X.X. Xxx 000, Xxxxxxx, Xxxx, 00000 and addressed to Mortgagee, ATTN:
VICE
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PRESIDENT, CORPORATE LENDING, 0000 XXXX XXXXX XXXXXX, XXXXXXXXX, XXXX 00000, or
to such other address as either party may designate from time to time by written
notice to the other in the manner set forth herein. All notices hereunder shall
be deemed for all purposes to have been received by the addressee two (2)
business days after the date of mailing.
30. Amendment. This Mortgage cannot be changed or amended except by
agreement in writing signed by the party against whom enforcement of the change
is sought.
31. Applicable Law. This Mortgage shall be governed by and construed
according to the laws of the State of Ohio.
32. WAIVER OF JURY TRIAL. MORTGAGOR AND MORTGAGEE EACH WAIVE ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INITIATED BY EITHER OF THEM
AGAINST THE OTHER ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL
TO THE RELATIONSHIP ESTABLISHED BETWEEN THE MORTGAGOR AND MORTGAGEE IN
CONNECTION WITH THIS MORTGAGE, THE NOTES, OR ANY OF THE OTHER LOAN DOCUMENTS.
33. Construction. Whenever used in this Mortgage, unless the context
clearly indicates a contrary intent:
(a) The word "Mortgagor" shall mean the entity or entities
which execute this Mortgage and any subsequent owner of the Mortgaged Property
and its/their respective heirs, executors, administrators, successors and
assigns;
(b) The word "Mortgagee" shall mean Dollar Bank, Federal
Savings Bank, or any subsequent holder of this Mortgage;
(c) The word "entity" and the word "person" shall mean
individual, corporation, partnership or unincorporated association;
(d) The use of any gender shall include all genders.
(e) The singular number shall include the plural and the
plural the singular as the context may require.
34. Joint and Several. If "Mortgagor" consists of more than one
person or entity, all obligations, liabilities and duties of Mortgagor hereunder
shall be joint and several and the entities shall be individually and
collectively liable for all such obligations, liabilities and duties.
35. Non-Usury and Severability Provisions. Notwithstanding anything
in this Mortgage, the Notes, or any other document evidencing the Indebtedness
to the contrary, neither the Mortgage nor the Notes shall be deemed to impose on
the Mortgagor any obligation of payment, except to the extent that the same may
be legally enforceable, and any provision to the contrary shall be of no force
or effect. If any term or provision of this Mortgage or the application thereof
to any person, property or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Mortgage, or the application of such term
or provision to persons, properties and circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Mortgage shall be valid and enforceable to the
fullest extent permitted by law.
36. Future Advances. This Mortgage is an Open-End Mortgage in
accordance with Section 5301.232 of the Ohio Revised Code. This Mortgage secures
unpaid balances of loan advances to be made after this Mortgage is delivered to
the county recorder for record. The maximum amount of unpaid balances,
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in the aggregate and exclusive of interest and other advances which may be
outstanding at any time is One Million Four Hundred Thousand and 00/100 Dollars
($1,400,000.00). If and to the extent applicable, Mortgagor hereby waives any
right it has under Section 5301.232(c) of the Ohio Revised Code to limit the
loan indebtedness secured by this Mortgage.
37. Notices/Open-End Mortgage Statute. The written notices provided
for in Section 5301.232 of the Ohio Revised Code from a person claiming priority
of a lien or encumbrance over the lien of this Mortgage for any future advances
made under any of the Notes shall be either personally delivered to a Vice
President of the Corporate Lending Department at Mortgagee's place of business
at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx Xxxx 00000 or sent to Mortgagee by
registered or certified mail, postage prepaid, return receipt requested,
addressed to Mortgagee, c/o Vice President, Corporate Lending Department, 0000
Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000.
38. Priority of Mortgage Lien. Mortgagee, at Mortgagee's option, is
authorized and empowered to do all things provided to be done by a Mortgagee
under Section 1311.14 of the Ohio Revised Code and any present or future
amendments or supplements thereto, for the protection of Mortgagee's interest in
the Mortgaged Property.
39. Captions. The captions preceding the text of the paragraphs or
subparagraphs of this Mortgage are inserted only for convenience of reference
and shall not constitute a part of this Mortgage, nor shall they in any way
affect its meaning, construction or effect.
40. Release. Upon payment of the Indebtedness, Mortgagee shall
discharge this Mortgage. Mortgagor shall pay Mortgagee's reasonable costs
incurred in discharging this Mortgage.
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IN WITNESS WHEREOF, Mortgagor has duly executed this Mortgage the day and
year first above written.
WITNESS: AMERICAN STONE CORPORATION
/s/ Xxxxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------- -------------------------------------
print name: Xxxxx X. Xxxxx
----------------------------
/s/ Xxxxxxx Xxxxxxx Title: President
-------------------------- ---------------------------------
STATE OF Ohio
COUNTY OF Cuyahoga
The foregoing instrument was acknowledged before me this 16th day of February,
2001, by Xxxxx X. Xxxxx [name], the President [title] of American Stone
Corporation, a Delaware corporation, on behalf of the corporation.
(SEAL)
/s/ Xxxxxxxxx Xxxxxxxxx
----------------------------------------
Notary Public
My commission expires: 9/1/2006
This instrument was prepared by:
Dollar Bank, Federal Savings Bank
0000 Xxxx Xxxxx Xx.
Xxxxxxxxx, Xxxx 00000
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DOLLAR BANK
LINE OF CREDIT NOTE
$500,000 February 16, 2001
FOR VALUE RECEIVED, the Undersigned promise(s) to pay to the order
of DOLLAR BANK, FEDERAL SAVINGS BANK (the "Bank") at its office at 0000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 or, at the holder's option, at such other
place as may be designated from time to time by the holder, the principal sum of
FIVE HUNDRED THOUSAND DOLLARS ($500,000.00), or so much thereof as may from time
to time be advanced by the Bank or any holder hereof to or for the account of
the Undersigned against this Note, in lawful money of the United States of
America, together with interest based upon a year of 360 days, in arrears, from
the date hereof on the unpaid principal balance hereof, computed daily, at the
RATE per annum indicated below, payable as indicated below.
1. RATE.
The RATE shall be the Prime Rate of the Bank. The Prime Rate of the Bank
means the fluctuating Prime Rate of interest established by the Bank from
time to time whether such rate shall be the lowest rate of interest
actually charged to any particular customer. The RATE based upon the Prime
Rate shall change when and as such Prime Rate shall change, without notice
to Undersigned.
In no event shall the interest rate payable on this Note exceed the
maximum rate authorized by applicable law.
2. PAYMENT SCHEDULE
Principal shall be paid in a single payment on DEMAND; interest shall be
paid monthly commencing on April 1, 2001, and continuing on the same day
of each successive month thereafter.
3. [RESERVED.]
4. SECURITY. This Note is secured under the terms of the Loan Agreement dated as
of the date hereof by and between the Borrower and the Bank (herein as amended
or otherwise modified from time to time, the "LOAN AGREEMENT"; capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Loan Agreement) and the other Related Documents. As additional
security for this Note the Bank has a lien on, a continuing security interest
in, and a right to set-off at anytime, without notice, against all property and
deposit accounts at or under the control of the Bank which belong to any of the
Undersigned, any endorser hereof or any other party hereto or any guarantor
hereof.
5. DISBURSEMENTS/PAYMENTS UNDER LINE OF CREDIT. This Note is issued under a line
of credit. The Bank shall maintain on its books a line of credit account in the
name of the Undersigned, which account will reflect disbursements and/or
payments under the Note. Failure of the Bank to reflect such disbursements
and/or payments shall not affect the Undersigned's liability under the Note.
6. WAIVER; ETC. The Undersigned and any co-makers, any endorser hereof of any
other party hereto (hereinafter collectively called the "Obligors") and each of
them: (a) waive(s) presentment, demand, notice of demand, protest, notice of
protest and notice of nonpayment and any other notice required to be given under
the law to any of Obligors, in connection with the delivery, acceptance,
performance, default or enforcement of this Note, of any endorsement or guaranty
of this Note or of any document or instrument evidencing any security for
payment of this Note; (b) consent(s) to any and all delays, extensions, renewals
or other modifications of this Note or waivers of any term hereof or release or
discharge by Bank of any of Obligors or release, substitution or exchange of any
security for the payment hereof or the failure to act on the part of Bank or any
indulgence shown by Bank, from time to time and in one or more instances,
(without notice to or further assent from any of Obligors) and agree(s) that no
such action, failure to act or failure to exercise any right or remedy, on the
part of the Bank shall in any way affect or impair the obligations of any
Obligors or be construed as a waiver by Bank of, or otherwise affect, any of
Bank's rights under this Note, or under any document or instrument evidencing
any security for payment of this Note; and (c) (jointly and severally, if more
than one) agree(s) to pay, on demand, all costs and expenses of collection of
this Note or of any endorsement
-89-
or any guaranty hereof and/or the enforcement of Bank's rights with respect to,
or the administration, supervision, preservation, protection of, or realization
upon, any property securing payment hereof, including attorney's fees and costs
incurred in collection of the amount due hereunder.
7. GOVERNING LAW. THIS NOTE IS DELIVERED IN AND SHALL BE CONSTRUED UNDER THE
LAWS OF THE STATE OF OHIO, AND IN ANY LITIGATION IN CONNECTION WITH, OR
ENFORCEMENT OF, THIS NOTE OR ANY SECURITY GIVEN FOR PAYMENT HEREOF, OBLIGORS,
AND EACH OF THEM, WAIVE(S) TRIAL BY JURY AND CONSENT(S) TO AND CONFER(S)
PERSONAL JURISDICTION ON COURTS OF THE STATE OF OHIO, OR OF THE FEDERAL
GOVERNMENT, AND EXPRESSLY WAIVE(S) ANY OBJECTIONS AS TO VENUE IN ANY OF SUCH
COURTS, AND AGREE(S) THAT SERVICE OF PROCESS MAY BE MADE ON OBLIGORS BY MAILING
A COPY OF THE SUMMONS OR COMPLAINT TO THEIR RESPECTIVE ADDRESSES AS CONTAINED IN
THE RECORDS OF THE BANK OR ANY HOLDER.
8. EVENTS OF DEFAULT. The occurrence of any one or more of the following events
shall constitute an "Event of Default" under this Note: (a) the failure to pay
or perform any agreements, covenants, obligations, liabilities or indebtedness
of any Obligors to Bank, whether under this Note, the Loan Agreement, the other
Notes, the Related Documents or any other agreement, note or instrument now or
hereafter existing, as and when due (whether upon demand, if this Note is
payable on demand, at scheduled maturity, by virtue of acceleration, or
otherwise) (and taking into consideration any applicable period of cure); (b)
the death of any of Obligors (if an individual), or the filing or commencement
of any proceeding by or against any of Obligors for dissolution or liquidation,
or the voluntary or involuntary termination or dissolution of any of Obligors;
(c) the failure by any of Obligors to pay any installment of principal or
interest or the failure to perform any of the covenants, agreements or
conditions of any debt or obligation owing to any person or entity other than
Bank; (d) any of Obligors shall apply for or consent to the appointment of a
receiver, trustee, or liquidator for itself or of all or a substantial or
material part of its assets, or be unable or admit in writing its inability to
pay its debts as they fall due, or make a general assignment for the benefit of
its creditors, or be adjudicated a bankrupt or insolvent, or file a voluntary
petition in bankruptcy or a petition or any answer seeking reorganization or an
arrangement with creditors or to take advantage of any insolvency law, or file
any answer admitting the material allegations of a petition filed against it in
any bankruptcy, reorganization or insolvency proceeding, or take any action for
the purpose of effecting any of the foregoing; (e) any of Obligors shall have an
order, judgment, or decree entered against it by any court of competent
jurisdiction approving a petition seeking its reorganization or appointing a
receiver, trustee or liquidator for it or of all or a substantial or material
part of its assets or have a petition filed against it in bankruptcy or seeking
reorganization or an arrangement with creditors or under any other insolvency
law which shall continue undismissed for a period of more than thirty (30)
consecutive days; (f) any attachments, liens or additional security instruments
being placed upon the property which is security for this Note except to the
extent permitted by an agreement, instrument or document executed in favor of
Bank in connection with this Note; (g) the acquisition at any time or from time
to time of title to the whole of or any part of the property which is security
for this Note by any person, partnership or corporation other than any of
Obligors except to the extent permitted by any such agreement, instrument or
document in favor of Bank; (h) any representation or warranty made by any of
Obligors to Bank in connection with this Note or in any other writing executed
in connection with this Note is or was, untrue or misleading; (i) the occurrence
of any Event of Default as defined in any security documents securing this Note;
(j) Bank reasonably deems itself insecure.
9. REMEDIES. Whenever there is a default under this Note or upon demand, if this
Note is payable on demand, (a) any commitment of the Bank to make advances to
Undersigned shall, at the Bank's option and upon written notice to the
Undersigned, immediately terminate and (b) the entire balance outstanding
hereunder and all other liabilities, indebtedness and obligations of Obligors to
Bank (however acquired or evidenced) shall, at the option of the Bank and upon
written notice to the Undersigned, immediately become forthwith due and payable,
without presentment, notice, protest or demand of any kind, (all of which are
expressly waived by Obligors) for the payment of the whole or any part hereof,
provided, however, that, upon the occurrence of an Event of Default described in
sections 8(d) and 8(e) hereof, such commitment shall be automatically terminated
and such liabilities, indebtedness and obligations to Bank shall automatically
become immediately due and payable without presentment, demand, protest, or
notice of any kind (all of which are expressly waived). Upon the occurrence of
an Event of Default, the rate of interest on the unpaid principal shall, at the
option of the Bank and to the extent permitted by law, be increased to five
percent (5%) over the contract rate (as shown on the face of this Note, "the
Default Rate") and interest shall accrue on the debt evidenced hereby at the
Default Rate from the date of such default until all amounts due hereunder are
fully paid. If the contract rate is based upon the Bank's Prime Rate, the
Default Rate will change each time and as
-90-
of the date that the Prime Rate of the Bank changes. Failure at any time to
exercise any of the aforesaid options or any other rights of Bank hereunder
shall not constitute a waiver thereof, nor shall it be a bar to the exercise of
any of the aforesaid options or rights at a later date. If this Note is payable
on demand, the acceptance by Bank of any partial payment hereof, from any of
Obligors shall not affect the demand tenor of this Note. The foregoing remedies
shall be in addition to, and not in limitation of, any and all rights and
remedies which Bank has or may have under any other documents executed in
connection with this Note or those it has or may have under applicable law.
10. LATE CHARGE. The Undersigned shall pay to the holder hereof a late charge of
six percent (6%) of any installment not received by the holder within fifteen
(15) days after the installment is due.
11. WARRANT TO CONFESS JUDGMENT. THE UNDERSIGNED HEREBY AUTHORIZES ANY
ATTORNEY-AT-LAW TO APPEAR IN ANY COURT OF RECORD IN THE STATE OF OHIO, OR IN ANY
OTHER XXXXX XX XXXXXXX XXXXXXXX XX XXX XXXXXX XXXXXX, AT ANY TIME OR TIMES AFTER
THE ABOVE SUM BECOMES DUE, AND WAIVE THE ISSUANCE AND SERVICE OF PROCESS AND
CONFESS JUDGMENT AGAINST THE UNDERSIGNED IN FAVOR OF ANY HOLDER OF THIS NOTE,
FOR THE AMOUNT THEN APPEARING DUE, TOGETHER WITH THE COSTS OF SUIT. THE
UNDERSIGNED HEREBY FOREVER WAIVES AND RELEASES ANY AND ALL ERRORS WHICH MAY
INTERVENE IN ANY SUCH PROCEEDINGS, WAIVES ALL RIGHT OF APPEAL AND STAY OF
EXECUTION. THE UNDERSIGNED SHALL NOT CAUSE ANY XXXX IN EQUITY TO BE FILED TO
INTERFERE IN ANY MANNER WITH THE OPERATION OF SUCH JUDGMENT, HEREBY RATIFYING
AND CONFIRMING ALL THAT SAID ATTORNEY MAY DO BY VIRTUE HEREOF. THE UNDERSIGNED
WAIVES ALL LAWS EXEMPTING REAL OR PERSONAL PROPERTY FROM EXECUTION, AND
INQUISITION AND EXTENSION UPON ANY LEVY ON REAL ESTATE ARE HEREBY WAIVED AND
CONDEMNATION AGREED TO, AND NO BENEFIT OF EXEMPTION WILL BE CLAIMED UNDER AND BY
VIRTUE OF ANY EXEMPTION LAW NOW IN FORCE OR WHICH MAY BE HEREAFTER ENACTED.
INTEREST ON ANY SUCH JUDGMENT SHALL ACCRUE AT A RATE EQUIVALENT TO THAT PROVIDED
FOR IN THIS NOTE. NO SINGLE EXERCISE OF THE FOREGOING WARRANT TO CONFESS
JUDGMENT, OR A SERIES OF JUDGMENTS, SHALL BE DEEMED TO EXHAUST THE WARRANT
WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE VALID,
VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED, AND IT MAY BE
EXERCISED FROM TIME TO TIME AS OFTEN AS THE HOLDER HEREOF SHALL ELECT UNTIL SUCH
TIME AS THE HOLDER SHALL HAVE RECEIVED PAYMENT IN FULL OF THE DEBT, INTEREST AND
COSTS.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
-91-
12. MISCELLANEOUS.
a. Invalidity. In the event any one or more of the provisions of this Note
shall for any reason be held to be invalid, illegal or unenforceable, in whole
or in part or in any respect, or in the event that any one or more of the
provisions of this Note operate or would prospectively operate to invalidate
this Note, then and in any of those events, such provision or provisions only
shall be deemed null and void and shall not affect any other provision of this
Note and the remaining provisions of this Note shall remain operative and in
full force and effect and shall in no way be affected, prejudiced or disturbed
thereby.
b. Non-business days. If any installment payment hereunder shall become
due on a Saturday, Sunday or a banking holiday, such payment may be made on the
business day next succeeding such due date, provided that the Undersigned shall
pay interest at the applicable rate until the date of actual receipt of such
installment by the holder of this Note.
c. Modification. No modification, waiver, forbearance, release or
amendment of any provision of this Note shall be made, except by a written
agreement duly executed by the Undersigned and the hold hereof.
d. Related Documents; Incorporation By Reference. The provisions of any
and all other instruments and documents which Undersigned has executed in
connection with the loan evidenced by this Note are hereby incorporated herein
by reference.
e. Successors & Assigns. This Note shall inure to the benefit of Bank's
successors and assigns.
f. Joint & Several Liability. If more than one person and/or entity
executes this Note, each and all persons and entities shall be jointly and
severally liable for repayment of all amounts due under this Note.
WARNING. BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR
KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS
OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS,
FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER
CAUSE.
This notice is intended to satisfy the requirements of Ohio Revised Code
Section 2323.13.
Intending to be legally bound, this Note has been executed the year and
day first above written.
AMERICAN STONE CORPORATION
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------
Title: President
---------------------------------
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DOLLAR BANK
TERM NOTE
$900,000 February 16, 2001
FOR VALUE RECEIVED, the Undersigned promise(s) to pay to the order
of DOLLAR BANK, FEDERAL SAVINGS BANK (the "Bank") at its office at 0000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 or, at the holder's option, at such other
place as may be designated from time to time by the holder, the principal sum of
NINE HUNDRED THOUSAND DOLLARS ($900,000.00), or so much thereof as may from time
to time be advanced by the Bank or any holder hereof to or for the account of
the Undersigned against this Note, in lawful money of the United States of
America, together with interest based upon a year of 360 days, in arrears, from
the date hereof on the unpaid principal balance hereof, computed daily, at the
RATE per annum indicated below, payable as indicated below.
1. RATE.
The Rate shall be eight percent (8.00%).
In no event shall the interest rate payable on this Note exceed the
maximum rate authorized by applicable law.
2. PAYMENT SCHEDULE. Principal and interest shall be paid in sixty (60) equal
monthly installments of $18,296.65 each, commencing on March 1, 2001, and
continuing on the same day of each successive month thereafter with a final
payment of all unpaid principal and interest on February 1, 2006.
3. PREPAYMENTS. The Undersigned may prepay the principal amount outstanding in
whole or in part upon 3 business days written notice to the Bank. Partial
prepayments shall be applied against installments due under the Note in the
inverse order of their maturities. In the event of prepayment from another
lender or source other than normal cash flow from operations, the Undersigned
agrees to pay a prepayment premium equal to:
5% of the principal amount prepaid on or before the first
anniversary of the Note.
4% of the principal amount prepaid on or before the second
anniversary of the Note.
3% of the principal amount prepaid on or before the third
anniversary of the Note.
2% of the principal amount prepaid on or before the fourth
anniversary of the Note.
1% of the principal amount prepaid on or before the fifth
anniversary of the Note.
4. SECURITY. This Note is secured under the terms of the Loan Agreement dated as
of the date hereof by and between the Borrower and the Bank (herein as amended
or otherwise modified from time to time, the "LOAN AGREEMENT"; capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Loan Agreement) and the other Related Documents. As additional
security for this Note the Bank has a lien on, a continuing security interest
in, and a right to set-off at anytime, without notice, against all property and
deposit accounts at or under the control of the Bank which belong to any of the
Undersigned, any endorser hereof or any other party hereto or any guarantor
hereof.
5. [RESERVED.]
6. WAIVER; ETC. The Undersigned and any co-makers, any endorser hereof of any
other party hereto (hereinafter collectively called the "Obligors") and each of
them: (a) waive(s) presentment, demand, notice of demand, protest, notice of
protest and notice of nonpayment and any other notice required to be given under
the law to any of Obligors, in connection with the delivery, acceptance,
performance, default or enforcement of this Note, of any endorsement or guaranty
of this Note or of any document or instrument evidencing any security for
payment of this Note; (b) consent(s) to any and all delays, extensions, renewals
or other modifications of this Note or waivers of any term hereof or release or
discharge by Bank of any of Obligors or release, substitution or exchange of any
security for the payment hereof or the failure to act on the part of Bank or any
indulgence shown by Bank, from time to time and in one or more instances,
(without notice to or
-93-
further assent from any of Obligors) and agree(s) that no such action, failure
to act or failure to exercise any right or remedy, on the part of the Bank shall
in any way affect or impair the obligations of any Obligors or be construed as a
waiver by Bank of, or otherwise affect, any of Bank's rights under this Note, or
under any document or instrument evidencing any security for payment of this
Note; and (c) (jointly and severally, if more than one) agree(s) to pay, on
demand, all costs and expenses of collection of this Note or of any endorsement
or any guaranty hereof and/or the enforcement of Bank's rights with respect to,
or the administration, supervision, preservation, protection of, or realization
upon, any property securing payment hereof, including attorney's fees and costs
incurred in collection of the amount due hereunder.
7. GOVERNING LAW. THIS NOTE IS DELIVERED IN AND SHALL BE CONSTRUED UNDER THE
LAWS OF THE STATE OF OHIO, AND IN ANY LITIGATION IN CONNECTION WITH, OR
ENFORCEMENT OF, THIS NOTE OR ANY SECURITY GIVEN FOR PAYMENT HEREOF, OBLIGORS,
AND EACH OF THEM, WAIVE(S) TRIAL BY JURY AND CONSENT(S) TO AND CONFER(S)
PERSONAL JURISDICTION ON COURTS OF THE STATE OF OHIO, OR OF THE FEDERAL
GOVERNMENT, AND EXPRESSLY WAIVE(S) ANY OBJECTIONS AS TO VENUE IN ANY OF SUCH
COURTS, AND AGREE(S) THAT SERVICE OF PROCESS MAY BE MADE ON OBLIGORS BY MAILING
A COPY OF THE SUMMONS OR COMPLAINT TO THEIR RESPECTIVE ADDRESSES AS CONTAINED IN
THE RECORDS OF THE BANK OR ANY HOLDER.
8. EVENTS OF DEFAULT. The occurrence of any one or more of the following events
shall constitute an "Event of Default" under this Note: (a) the failure to pay
or perform any agreements, covenants, obligations, liabilities or indebtedness
of any Obligors to Bank, whether under this Note, the Loan Agreement, the other
Notes, the Related Documents or any other agreement, note or instrument now or
hereafter existing, as and when due (whether upon demand, if this Note is
payable on demand, at scheduled maturity, by virtue of acceleration, or
otherwise) (and taking into consideration any applicable period of cure); (b)
the death of any of Obligors (if an individual), or the filing or commencement
of any proceeding by or against any of Obligors for dissolution or liquidation,
or the voluntary or involuntary termination or dissolution of any of Obligors;
(c) the failure by any of Obligors to pay any installment of principal or
interest or the failure to perform any of the covenants, agreements or
conditions of any debt or obligation owing to any person or entity other than
Bank; (d) any of Obligors shall apply for or consent to the appointment of a
receiver, trustee, or liquidator for itself or of all or a substantial or
material part of its assets, or be unable or admit in writing its inability to
pay its debts as they fall due, or make a general assignment for the benefit of
its creditors, or be adjudicated a bankrupt or insolvent, or file a voluntary
petition in bankruptcy or a petition or any answer seeking reorganization or an
arrangement with creditors or to take advantage of any insolvency law, or file
any answer admitting the material allegations of a petition filed against it in
any bankruptcy, reorganization or insolvency proceeding, or take any action for
the purpose of effecting any of the foregoing; (e) any of Obligors shall have an
order, judgment, or decree entered against it by any court of competent
jurisdiction approving a petition seeking its reorganization or appointing a
receiver, trustee or liquidator for it or of all or a substantial or material
part of its assets or have a petition filed against it in bankruptcy or seeking
reorganization or an arrangement with creditors or under any other insolvency
law which shall continue undismissed for a period of more than thirty (30)
consecutive days; (f) any attachments, liens or additional security instruments
being placed upon the property which is security for this Note except to the
extent permitted by an agreement, instrument or document executed in favor of
Bank in connection with this Note; (g) the acquisition at any time or from time
to time of title to the whole of or any part of the property which is security
for this Note by any person, partnership or corporation other than any of
Obligors except to the extent permitted by any such agreement, instrument or
document in favor of Bank; (h) any representation or warranty made by any of
Obligors to Bank in connection with this Note or in any other writing executed
in connection with this Note is or was, untrue or misleading; (i) the occurrence
of any Event of Default as defined in any security documents securing this Note;
(j) Bank reasonably deems itself insecure.
9. REMEDIES. Whenever there is a default under this Note or upon demand, if this
Note is payable on demand, (a) any commitment of the Bank to make advances to
Undersigned shall, at the Bank's option and upon written notice to the
Undersigned, immediately terminate and (b) the entire balance outstanding
hereunder and all other liabilities, indebtedness and obligations of Obligors to
Bank (however acquired or evidenced) shall, at the option of the Bank and upon
written notice to the Undersigned, immediately become forthwith due and payable,
without presentment, notice, protest or demand of any kind, (all of which are
-94-
expressly waived by Obligors) for the payment of the whole or any part hereof,
provided, however, that, upon the occurrence of an Event of Default described in
sections 8(d) and 8(e) hereof, such commitment shall be automatically terminated
and such liabilities, indebtedness and obligations to Bank shall automatically
become immediately due and payable without presentment, demand, protest, or
notice of any kind (all of which are expressly waived). Upon the occurrence of
an Event of Default, the rate of interest on the unpaid principal shall, at the
option of the Bank and to the extent permitted by law, be increased to five
percent (5%) over the contract rate (as shown on the face of this Note, "the
Default Rate") and interest shall accrue on the debt evidenced hereby at the
Default Rate from the date of such default until all amounts due hereunder are
fully paid. If the contract rate is based upon the Bank's Prime Rate, the
Default Rate will change each time and as of the date that the Prime Rate of the
Bank changes. Failure at any time to exercise any of the aforesaid options or
any other rights of Bank hereunder shall not constitute a waiver thereof, nor
shall it be a bar to the exercise of any of the aforesaid options or rights at a
later date. If this Note is payable on demand, the acceptance by Bank of any
partial payment hereof, from any of Obligors shall not affect the demand tenor
of this Note. The foregoing remedies shall be in addition to, and not in
limitation of, any and all rights and remedies which Bank has or may have under
any other documents executed in connection with this Note or those it has or may
have under applicable law.
10. LATE CHARGE. The Undersigned shall pay to the holder hereof a late charge of
six percent (6%) of any installment not received by the holder within fifteen
(15) days after the installment is due.
11. WARRANT TO CONFESS JUDGMENT. THE UNDERSIGNED HEREBY AUTHORIZES ANY
ATTORNEY-AT-LAW TO APPEAR IN ANY COURT OF RECORD IN THE STATE OF OHIO, OR IN ANY
OTHER XXXXX XX XXXXXXX XXXXXXXX XX XXX XXXXXX XXXXXX, AT ANY TIME OR TIMES AFTER
THE ABOVE SUM BECOMES DUE, AND WAIVE THE ISSUANCE AND SERVICE OF PROCESS AND
CONFESS JUDGMENT AGAINST THE UNDERSIGNED IN FAVOR OF ANY HOLDER OF THIS NOTE,
FOR THE AMOUNT THEN APPEARING DUE, TOGETHER WITH THE COSTS OF SUIT. THE
UNDERSIGNED HEREBY FOREVER WAIVES AND RELEASES ANY AND ALL ERRORS WHICH MAY
INTERVENE IN ANY SUCH PROCEEDINGS, WAIVES ALL RIGHT OF APPEAL AND STAY OF
EXECUTION. THE UNDERSIGNED SHALL NOT CAUSE ANY XXXX IN EQUITY TO BE FILED TO
INTERFERE IN ANY MANNER WITH THE OPERATION OF SUCH JUDGMENT, HEREBY RATIFYING
AND CONFIRMING ALL THAT SAID ATTORNEY MAY DO BY VIRTUE HEREOF. THE UNDERSIGNED
WAIVES ALL LAWS EXEMPTING REAL OR PERSONAL PROPERTY FROM EXECUTION, AND
INQUISITION AND EXTENSION UPON ANY LEVY ON REAL ESTATE ARE HEREBY WAIVED AND
CONDEMNATION AGREED TO, AND NO BENEFIT OF EXEMPTION WILL BE CLAIMED UNDER AND BY
VIRTUE OF ANY EXEMPTION LAW NOW IN FORCE OR WHICH MAY BE HEREAFTER ENACTED.
INTEREST ON ANY SUCH JUDGMENT SHALL ACCRUE AT A RATE EQUIVALENT TO THAT PROVIDED
FOR IN THIS NOTE. NO SINGLE EXERCISE OF THE FOREGOING WARRANT TO CONFESS
JUDGMENT, OR A SERIES OF JUDGMENTS, SHALL BE DEEMED TO EXHAUST THE WARRANT
WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE VALID,
VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED, AND IT MAY BE
EXERCISED FROM TIME TO TIME AS OFTEN AS THE HOLDER HEREOF SHALL ELECT UNTIL SUCH
TIME AS THE HOLDER SHALL HAVE RECEIVED PAYMENT IN FULL OF THE DEBT, INTEREST AND
COSTS.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
-95-
12. MISCELLANEOUS.
a. Invalidity. In the event any one or more of the provisions of this Note
shall for any reason be held to be invalid, illegal or unenforceable, in whole
or in part or in any respect, or in the event that any one or more of the
provisions of this Note operate or would prospectively operate to invalidate
this Note, then and in any of those events, such provision or provisions only
shall be deemed null and void and shall not affect any other provision of this
Note and the remaining provisions of this Note shall remain operative and in
full force and effect and shall in no way be affected, prejudiced or disturbed
thereby.
b. Non-business days. If any installment payment hereunder shall become
due on a Saturday, Sunday or a banking holiday, such payment may be made on the
business day next succeeding such due date, provided that the Undersigned shall
pay interest at the applicable rate until the date of actual receipt of such
installment by the holder of this Note.
c. Modification. No modification, waiver, forbearance, release or
amendment of any provision of this Note shall be made, except by a written
agreement duly executed by the Undersigned and the hold hereof.
d. Related Documents; Incorporation By Reference. The provisions of any
and all other instruments and documents which Undersigned has executed in
connection with the loan evidenced by this Note are hereby incorporated herein
by reference.
e. Successors & Assigns. This Note shall inure to the benefit of Bank's
successors and assigns.
f. Joint & Several Liability. If more than one person and/or entity
executes this Note, each and all persons and entities shall be jointly and
severally liable for repayment of all amounts due under this Note.
WARNING. BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR
KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS
OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS,
FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER
CAUSE.
This notice is intended to satisfy the requirements of Ohio Revised Code
Section 2323.13.
Intending to be legally bound, this Note has been executed the year and
day first above written.
AMERICAN STONE CORPORATION
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------
Title: President
---------------------------------
-96-
DOLLAR BANK
GUARANTY AGREEMENT
WITH WARRANT TO CONFESS JUDGEMENT
1. To induce DOLLAR BANK, Federal Savings Bank ("Bank"), to transact business
and to make credit arrangements with AMERICAN STONE CORPORATION ("Debtor"),
Undersigned does hereby guaranty the full and timely payment of the principal
of, and interest on, all obligations, debts, dues, instruments, liabilities,
advances, judgments, damages, losses, claims, contracts and choses in action, of
whatever nature and however arising, past, present or future, and any and all
extensions and renewals thereof in whole or in part, whether direct or indirect,
absolute or contingent, voluntary or involuntary, now due or to become due, and
whether owed to Bank from Debtor as drawer, maker, endorser, assignor,
guarantor, or otherwise whatsoever ("Indebtedness"), except this Guaranty
Agreement shall not extend to any obligation of Debtor which is defined as
"consumer credit" by Federal Reserve Board Regulation Z, 12 C.F.R. 226.1 et
seq., and is not exempted from the application of that Regulation. Undersigned
will reimburse Bank or any subsequent holder hereof for all expense incurred,
and not reimbursed by Debtor, in collection of any of Indebtedness. If this
Guaranty Agreement is referred for collection to any attorney not a salaried
employee of Bank or of the holder hereof, Undersigned will pay all reasonable
attorneys' fees and all costs of legal proceedings.
2. This is a guaranty of payment and not merely of collection. In the event of
any default by Debtor in payment or otherwise on any of Indebtedness,
Undersigned will pay all or any portion of Indebtedness due or thereafter
becoming due, whether by acceleration or otherwise, without defalcation or
offset of any kind, without Bank first being required to make demand upon Debtor
or pursue any of its rights against Debtor, or against any other person,
including other guarantors; and without being required to liquidate or realize
on any collateral security. In any right of action accruing to Bank, Bank may
elect to proceed against (a) Undersigned together with Debtor; (b) Undersigned
and Debtor individually; (c) Undersigned only without having first commenced any
action against Debtor.
3. Bank, without notice to Undersigned, may deal with Indebtedness and any
collateral security for Indebtedness in such manner as Bank may deem advisable
and may renew or extend Indebtedness or any part thereof; accept partial
payment, or settle, release, compound, or compromise the same; demand additional
collateral security for Indebtedness, and substitute or release the same; and
may compromise or settle with or release and discharge from liability any of
Undersigned or any other guarantor of Indebtedness, or any other person totally
or partially liable to Bank for the Obligations of Debtor to Bank; all without
impairing the liability of Undersigned hereunder.
4. Undersigned hereby unconditionally waives: (a) notice of acceptance of this
Guaranty Agreement by Bank and any notice of the incurring by Debtor of any
Indebtedness; (b) presentment for payment, notice of non-payment, demand,
protest, notice of protest and notice of dishonor or default to any party
including Undersigned; (c) all other notices to which Undersigned may be
entitled but which may legally be waived; (d) demand for payments as a condition
of liability under this Guaranty Agreement; (e) any disability of Debtor or
defense available to Debtor, including absence or cessation of Debtor's
liability for any reason whatsoever; (f) any defense or circumstance which might
otherwise constitute a legal or equitable discharge of a guarantor; (g) all
rights under any state or federal statute dealing with or affecting the rights
of creditors; (h) until Indebtedness is paid in full, any right to subrogation
or realization on any of Debtor's property, including participation in the
marshalling of Debtor's assets.
5. Until Indebtedness is paid in full, Undersigned hereby unconditionally
subordinates all present and future debts, liabilities, or obligations of Debtor
to Undersigned to Indebtedness, and all amounts due under such debts,
liabilities, or obligations shall be collected and paid over to Bank on account
of Indebtedness. Undersigned, at Bank's request, shall execute a subordination
agreement in favor of Bank to further evidence and support the purpose of this
Paragraph 5.
6 Undersigned warrants to Bank: (a) no other agreement, representation or
special condition exists between Undersigned and Bank regarding the liability of
Undersigned hereunder, nor does any understanding exist between Undersigned and
Bank that the obligations of Undersigned hereunder are or will be other than as
set out herein; (b) as of the date hereof Undersigned has no defense whatsoever
to any action or proceeding that may be brought to enforce this Guaranty
Agreement.
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7. Undersigned will provide financial information to Bank upon request,
including balance sheets and income statements, in form and content satisfactory
to Bank.
8. No failure or delay on the part of Bank in exercising any right, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right power or privilege hereunder preclude any other or
further exercise thereof, or the exercise of any other right, power or
privilege. Failure by Bank to insist upon strict performance hereof shall not
constitute a relinquishment of its right to demand strict performance at another
time. Receipt by Bank of any payment by any person on Indebtedness with
knowledge of a default on any of Indebtedness or of a breach of this Guaranty
Agreement, or both, shall not be construed as a waiver of the default or breach.
9. THIS GUARANTY AGREEMENT IS A CONTINUING OBLIGATION AND SHALL CONTINUE IN
FORCE SO LONG AS ANY PORTION OF INDEBTEDNESS REMAINS UNPAID, AND
THEREAFTER UNTIL RECEIPT BY BANK OF WRITTEN NOTICE OF REVOCATION BY
UNDERSIGNED OR RECEIPT OF NOTICE OF UNDERSIGNED'S DEATH; AND IN EITHER OF
SUCH EVENTS THIS GUARANTY AGREEMENT SHALL CONTINUE IN EFFECT NEVERTHELESS
UNTIL ALL EXISTING INDEBTEDNESS IS PAID; IT BEING CONTEMPLATED THAT DEBTOR
MAY CREATE OR INCUR INDEBTEDNESS, REPAY AND SUBSEQUENTLY CREATE OR INCUR
INDEBTEDNESS WITHOUT NOTICE TO UNDERSIGNED; AND UNDERSIGNED, BY PERMITTING
THIS GUARANTY AGREEMENT TO REMAIN IN EFFECT, SHALL BE BOUND.
10. This Guaranty Agreement is freely assignable and transferable by Bank;
however, the duties and obligations of Undersigned may not be delegated or
transferred by Undersigned without the written consent of Bank. The rights and
privileges of Bank shall inure to the benefit of its successors and assigns, and
the duties and obligations of Undersigned shall bind Undersigned's heirs,
personal representatives, successors and assigns.
11. If any provision hereof shall for any reason be held invalid or
unenforceable, no other provision shall be affected thereby, and this Guaranty
Agreement shall be construed as if the invalid or unenforceable provision had
never been a part of it.
12. As used herein "Undersigned," if more than one, shall mean "all of the
undersigned, or each or any of them," and when more than one, they are jointly
and severally liable.
13. This Guaranty Agreement shall in all respects be governed by the law of the
State of Ohio.
The Undersigned hereby authorizes any attorney-at-law to appear in any court of
record in the State of Ohio, or in any other state or federal district of the
United States, at any time or times after the Indebtedness becomes due, and
waive the issuance and service of process and confess judgement against the
Undersigned in favor of Bank or its assignee, for the amount of the
Indebtedness, together with the costs of suit. The Undersigned hereby forever
waives and releases all errors which may intervene in any such proceedings,
waives all rights of appeal and stay of execution. The Undersigned shall not
cause any xxxx of equity to be filed to interfere in any manner with the
operation of said judgment, hereby ratifying and confirming all that said
attorney may do by virtue hereof. The Undersigned waives all laws exempting real
or personal property, and the inquisition and extension upon any levy on real
estate are hereby waived and condemnation agreed to, and no benefit of exemption
will be claimed under and by virtue of any exemption law now in force or which
may be hereafter enacted. No single exercise of the foregoing warrant to confess
judgment shall be deemed to exhaust the warrant whether or not any such exercise
shall be held by any court to be valid, voidable or void, but the warrant shall
continue undiminished and it may be exercised from time to time as often as Bank
or its assignee shall elect, until such time as Bank or its assignee shall have
received payment in full of the Indebtedness.
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WITNESS the due execution hereof, intending to be legally bound hereby, on
February 16, 2001 .
WARNING: BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR
PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT OR ANY
OTHER CAUSE.
ATTEST: AMERICAN STONE INDUSTRIES, INC.
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By /s/ Xxxxxxx X. Xxxxx, Secretary By /s/ Xxxxx X. Xxxxx, President
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Title Title
(Corporate Seal)
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