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EXHIBIT 10.8
OHIO
OPEN-END MORTGAGE AND SECURITY AGREEMENT
from
XXXXXXXX CORPORATION, Mortgagor
to
CREDIT SUISSE FIRST BOSTON, Mortgagee
DATED AS OF JUNE 12, 1997
This Mortgage has been prepared by, and
after recording, please return to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
a partnership which includes
professional corporations
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxx X. Xxxxxxxx, Esq.
THE TOTAL PRINCIPAL AMOUNT OF THE INDEBTEDNESS SECURED BY THIS OPEN-END
MORTGAGE SHALL NOT EXCEED $180,000,000.
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OHIO
OPEN-END MORTGAGE AND SECURITY AGREEMENT
THIS OPEN-END MORTGAGE AND SECURITY AGREEMENT, dated as of June _
, 1997 is made by XXXXXXXX CORPORATION, a Delaware corporation ("Mortgagor"),
whose address is 000 Xxxxxx Xxxxx, Xx. Xxxxxxxx, Xxxxxxxx 00000-0000, to
CREDIT SUISSE FIRST BOSTON, a Swiss banking corporation, as administrative
agent for the Lenders referred to below (in such capacity, "Mortgagee"), whose
address is 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. References to this
"Mortgage" shall mean this instrument and any and all renewals, modifications,
amendments, supplements, extensions, consolidations, substitutions, spreaders
and replacements of this instrument.
Background
A. Mortgagor is the owner of the parcel(s) of real property
described on Schedule A attached located in the City and County of Ashland,
State of Ohio (such real property, together with all of the buildings,
improvements, structures and fixtures now or subsequently located thereon (the
"Improvements"), being collectively referred to as the "Real Estate").
B. Mortgagor is a party to that certain Credit Agreement
dated as of even date herewith (as the same may be amended, supplemented,
modified, extended, restated or replaced from time to time, the "Credit
Agreement") among Mortgagor, the several banks and other financial institutions
from time to time parties thereto (the "Lenders") and Mortgagee. All defined
terms used and not defined herein shall have the meanings assigned thereto in
the Credit Agreement.
C. Pursuant to the Credit Agreement, (i) certain of the
Lenders have agreed to make the loans as described in Section 2 of the Credit
Agreement to Mortgagor (the "Tranche A Loans"); (ii) certain of the Lenders
have agreed to make term loans as described in Section 3 of the Credit
Agreement to Mortgagor (the "Tranche B Loans"); (iii) certain of the Lenders
have agreed to make revolving credit loans to Mortgagor (the "Revolving Credit
Loans"); (iv) the Issuing Lender has agreed to issue letters of credit for the
account of Mortgagor; and (v) the Swing Line Lender has agreed to make swing
line loans to Mortgagor (the "Swing Line Loans"). The maximum aggregate
principal amount of the Tranche A Loans, the Tranche B Loans, the Revolving
Credit Loans, the Swing Line Loans and the L/C Obligations outstanding at any
one time shall not exceed $180,000,000.
D. The Loans may be evidenced by promissory notes of
Mortgagor made payable to the order of the relevant Lender (as the same may be
amended, supplemented, modified, extended,
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restated or replaced from time to time, the "Notes"). Each Loan bears interest
at the rate stated in the Credit Agreement; references in this Mortgage to the
"Default Rate" shall mean, at any time, the interest rate applicable to overdue
principal amounts of the Loans as provided in the Credit Agreement. The
obligation of Mortgagor to reimburse the Issuing Lender for amounts drawn under
Letters of Credit (the "Reimbursement Obligation") is governed by the section
of the Credit Agreement entitled "Letters of Credit."
E. It is a condition precedent to the obligation of the
Lenders to make their respective Loans to Mortgagor and of the issuing Lender
to issue the Letters of Credit for the account of Mortgagor that Mortgagor
shall have executed and delivered this Mortgage to Mortgagee for the benefit of
Mortgagee and the other Lenders, and Mortgagor is willing to so execute and
deliver this Mortgage in order to obtain the benefits available to it from
entering into the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and to induce
Mortgagee and the other Lenders to make their respective Loans to Mortgagor and
the Issuing Lender to issue the Letters of Credit for the account of Mortgagor,
Mortgagor hereby agrees with Mortgagee, for the benefit of Mortgagee and the
other Lenders, as follows:
Granting Clauses
For good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Mortgagor agrees that to secure:
(a) (i) the repayment of the indebtedness evidenced by the
Notes, (ii) all interest (including, without limitation, interest
accruing after the maturity of the Loans and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to Mortgagor
whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) and fees, indemnities, costs, expenses
(including, without limitation, all reasonable fees and disbursements of
counsel to Mortgagee or to the Lenders that are required to be paid by
Mortgagor pursuant to the terms of the Credit Agreement or this
Mortgage) or otherwise payable thereon and (iii) payment of the
Reimbursement Obligation with respect to the Letters of Credit, whether
in respect of any drawings under any Letters of Credit, fees,
commissions, expenses or otherwise (the items set forth in clauses (i),
(ii) and (iii) being referred to collectively as the "Indebtedness");
and
(b) the performance of all covenants, agreements, obligations
and liabilities of Mortgagor (the "Obligations")
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whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereinafter incurred, which may arise under or
pursuant to the provisions of the Notes, this Mortgage, any other
document securing payment of the Indebtedness (the "Security Documents")
and any amendments, supplements, extensions, renewals, restatements,
replacements or modifications of any of the foregoing (the Notes, the
Security Documents, the Credit Agreement and all other documents and
instruments from time to time evidencing, securing or guaranteeing the
payment of the Indebtedness or the performance of the Obligations, as
any of the same may be amended, supplemented, extended, renewed,
restated, replaced or modified from time to time, are collectively
referred to as the "Loan Documents");
Granting Clauses
MORTGAGOR HEREBY GRANTS TO MORTGAGEE A LIEN UPON AND A SECURITY INTEREST IN,
AND HEREBY MORTGAGES, GRANTS, ASSIGNS, TRANSFERS AND SETS OVER TO MORTGAGEE:
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever of
Mortgagor, in possession or expectancy, in and to the Real Estate or any
part thereof;
(C) all right, title and interest of Mortgagor in, to and under
all easements, rights of way, gores of land, streets, ways, alleys,
passages, sewer rights, waters, water courses, water and riparian
rights, development rights, air rights, mineral rights and all estates,
rights, titles, interests, privileges, licenses, tenements,
hereditaments and appurtenances belonging, relating or appertaining to
the Real Estate, and any reversions, remainders, rents, issues, profits
and revenue thereof and all land lying in the bed of any street, road or
avenue, in front of or adjoining the Real Estate to the center line
thereof;
(D) all right, title and interest of Mortgagor in all of the
fixtures, chattels, business machines, machinery, apparatus, equipment,
furnishings, fittings and articles of personal property of every kind
and nature whatsoever, and all appurtenances and additions thereto and
substitutions or replacements thereof (together with, in each case,
attachments, components, parts and accessories) currently owned or
subsequently acquired by Mortgagor and now or subsequently attached to,
or contained in or used or usable in any way in connection with any
operation or letting of the Real Estate, including but without limiting
the generality of the foregoing, all screens, awnings, shades, blinds,
curtains, draperies, artwork, carpets, rugs, storm doors and windows,
furniture and furnishings, heating, electrical, and mechanical
equipment, lighting,
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switchboards, plumbing, ventilating, air conditioning and air-cooling
apparatus, refrigerating, and incinerating equipment, escalators,
elevators, loading and unloading equipment and systems, stoves, ranges,
laundry equipment, cleaning systems (including window cleaning
apparatus), telephones, communication systems (including satellite
dishes and antennae), televisions, computers, sprinkler systems and
other fire prevention and extinguishing apparatus and materials,
security systems, motors, engines, machinery, pipes, pumps, tanks,
conduits, appliances, fittings and fixtures of every kind and
description (all of the foregoing in this paragraph (D) being referred
to as the "Equipment");
(E) all right, title and interest of Mortgagor in and to all
substitutes and replacements of, and all additions and improvements to,
the Real Estate and the Equipment, subsequently acquired by or released
to Mortgagor or constructed, assembled or placed by Mortgagor on the
Real Estate, immediately upon such acquisition, release, construction,
assembling or placement, including, without limitation, any and all
building materials whether stored at the Real Estate or offsite, and, in
each such case, without any further mortgage, conveyance, assignment or
other act by Mortgagor;
(F) all right, title and interest of Mortgagor in, to and under
all leases, subleases, underlettings, concession agreements, management
agreements, licenses and other agreements relating to the use or
occupancy of the Real Estate or the Equipment or any part thereof, now
existing or subsequently entered into by Mortgagor and whether written
or oral and all guarantees of any of the foregoing (collectively, as any
of the foregoing may be amended, restated, extended, renewed or modified
from time to time, the "Leases"), and all rights of Mortgagor in respect
of cash and securities deposited thereunder and the right to receive and
collect the revenues, income, rents, issues and profits thereof,
together with all other rents, royalties, issues, profits, revenue,
income and other benefits arising from the use and enjoyment of the
Mortgaged Property (as defined below) (collectively, the "Rents");
(G) all trade names, trade marks, logos, copyrights, good will
and books and records relating to or used in connection with the
operation of the Real Estate or the Equipment or any part thereof; all
general intangibles related to the operation of the Improvements now
existing or hereafter arising (collectively, the "Intellectual
Property");
(H) all right, title and interest of Mortgagor in all unearned
premiums under insurance policies now or subsequently obtained by
Mortgagor relating to the Real
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Estate or Equipment and Mortgagor's interest in and to all proceeds of
any such insurance policies (including title insurance policies)
including the right to collect and receive such proceeds, subject to the
provisions relating to insurance generally set forth in the Credit
Agreement; and all awards and other compensation, including the interest
payable thereon and the right to collect and receive the same, made to
the present or any subsequent owner of the Real Estate or Equipment for
the taking by eminent domain, condemnation or otherwise, of all or any
part of the Real Estate or any easement or other right therein;
(I) to the extent assignable by Mortgagor, all right, title and
interest of Mortgagor in and to (i) all contracts from time to time
executed by Mortgagor or any manager or agent on its behalf relating to
the ownership, construction, maintenance, repair, operation, occupancy,
sale or financing of the Real Estate or Equipment or any part thereof
and all agreements relating to the purchase or lease of any portion of
the Real Estate or any property which is adjacent or peripheral to the
Real Estate, together with the right to exercise such options and all
leases of Equipment (collectively, the "Contracts"), (ii) all consents,
licenses, building permits, certificates of occupancy and other
governmental approvals relating to construction, completion, occupancy,
use or operation of the Real Estate or any part thereof (collectively,
the "Permits") and (iii) all drawings, plans, specifications and similar
or related items relating to the Real Estate (collectively, the
"Plans");
(J) all right, title and interest of Mortgagor in any and all
monies now or subsequently on deposit for the payment of real estate
taxes or special assessments against the Real Estate or for the payment
of premiums on insurance policies covering the foregoing property; all
capital, operating, reserve or similar accounts held by or on behalf of
Mortgagor and related to the operation of the Mortgaged Property,
whether now existing or hereafter arising and all monies held in any of
the foregoing accounts and any certificates or instruments related to or
evidencing such accounts;
(K) all accounts and revenues arising from the operation of the
Improvements including, without limitation, (i) any right to payment now
existing or hereafter arising for rental of hotel rooms or other space
or for goods sold or leased or for services rendered, whether or not yet
earned by performance, arising from the operation of the Improvements or
any other facility on the Mortgaged Property and (ii) to the extent
assignable by Mortgagor, all rights to payment from any consumer credit-
charge card organization or entity including, without limitation,
payments arising from the use of the American Express Card, the Visa
Card,
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the Xxxxx Xxxxxxx Card, the Mastercard or any other credit card,
including those now existing or hereafter created, substitutions
therefor, proceeds thereof (whether cash or non-cash, movable or
immovable, tangible or intangible) received upon the sale, exchange,
transfer, collection or other disposition or substitution thereof and
any and all of the foregoing and proceeds therefrom; and
(L) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now owned
or held or subsequently acquired by Mortgagor and described in the foregoing
clauses (A) through (E) are collectively referred to as the "Premises", and
those described in the foregoing clauses (A) through (L) are collectively
referred to as the "Mortgaged Property"; notwithstanding the foregoing,
"Mortgaged Property" shall not include, with respect to Mortgagor, any Leases,
Intellectual Property, Contracts, Permits or Plans to the extent the grant by
Mortgagor of a security interest pursuant to this Mortgage in its rights under
such item is prohibited thereby and the consent of applicable Persons has not
been obtained, provided that the foregoing limitation shall not affect, limit,
restrict or impair the grant by Mortgagor of a security interest pursuant to
this Mortgage in any Account or any money or other amounts due or to become due
under such Lease, Intellectual Property, Contract, Permit or Plan, to the
extent provided in Section 9-318 of the New York UCC as in effect on the date
hereof.).
TO HAVE AND TO HOLD the Mortgaged Property and the rights and
privileges hereby mortgaged unto Mortgagee, its successors and assigns for the
uses and purposes set forth, until the Indebtedness is fully paid and the
Obligations fully performed.
Terms and Conditions
Mortgagor further represents, warrants, covenants and agrees with
Mortgagee as follows:
1. Warranty of Title. Mortgagor warrants that Mortgagor has
good title to the Real Estate in fee simple and good title to the rest of the
Mortgaged Property, subject only to the matters that are set forth in Schedule
B of the title insurance policy or policies being issued to Mortgagee to insure
the lien of this Mortgage and those items permitted by the Credit Agreement
(collectively, the "Permitted Exceptions") and Mortgagor shall warrant, defend
and preserve such title and the lien of the Mortgage thereon against all claims
of all persons and entities. Mortgagor further warrants that it has the right
to mortgage the Mortgaged Property.
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2. Payment of Indebtedness. Mortgagor shall pay the
Indebtedness at the times and places and in the manner specified in the Notes
and shall perform all the Obligations.
3. Requirements.
(a) Mortgagor shall promptly comply with, or cause to be
complied with, and conform to all present and future laws, statutes, codes,
ordinances, orders, judgments, decrees, rules, regulations and requirements,
and irrespective of the nature of the work to be done, of each of the United
States of America, any State and any municipality, local government or other
political subdivision thereof and any agency, department, bureau, board,
commission or other instrumentality of any of them, now existing or
subsequently created (collectively, "Governmental Authority") which has
jurisdiction over the Mortgaged Property and all covenants, restrictions and
conditions now or later of record which may be applicable to any of the
Mortgaged Property, or to the use, manner of use, occupancy, possession,
operation, maintenance, alteration, repair or reconstruction of any of the
Mortgaged Property, except to the extent that failure to comply therewith could
not, in the aggregate, reasonably be expected to have a Material Adverse
Effect. All present and future laws, statutes, codes, ordinances, orders,
judgments, decrees, rules, regulations and requirements of every Governmental
Authority applicable to Mortgagor or to any of the Mortgaged Property and all
covenants, restrictions, and conditions which now or later may be applicable to
any of the Mortgaged Property are collectively referred to as the "Legal
Requirements".
(b) From and after the date of this Mortgage, Mortgagor shall
not by act or omission permit any building or other improvement on any premises
not subject to the lien of this Mortgage to rely on the Premises or any part
thereof or any interest therein to fulfill any Legal Requirement, and Mortgagor
hereby assigns to Mortgagee any and all rights to give consent for all or any
portion of the Premises or any interest therein to be so used. Mortgagor shall
not by act or omission impair the integrity of any of the Real Estate which is
a single zoning lot as of the date hereof as a single zoning lot separate and
apart from all other premises. Any act or omission by Mortgagor which would
result in a violation of any of the provisions of this subsection shall be
void.
4. Payment of Taxes and Other Impositions. (a) Mortgagor shall
pay and discharge taxes and other charges in accordance with the Credit
Agreement.
(b) Any sums paid by Mortgagee in discharge of any taxes
permitted to be paid by Mortgagee pursuant to the Credit Agreement shall be (i)
a lien on the Premises secured hereby prior to any right or title to, interest
in, or claim upon the Premises subordinate to the lien of this Mortgage and
(ii) payable to Mortgagee as set forth in the Credit Agreement.
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(c) Mortgagor shall not claim, demand or be entitled to receive
any credit or credits toward the satisfaction of this Mortgage or on any
interest payable thereon for any taxes assessed against the Mortgaged Property
or any part thereof, and shall not claim any deduction from the taxable value
of the Mortgaged Property by reason of this Mortgage.
5. Insurance. (a) Mortgagor shall maintain or cause to be
maintained on all of the Premises insurance as required under the Credit
Agreement.
(b) Mortgagor promptly comply in all material respects with and
conform to (i) all provisions of each such insurance policy, and (ii) all
requirements of the insurers applicable to Mortgagor or to any of the Mortgaged
Property or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration or repair of any of the Mortgaged Property. Mortgagor
shall not use or permit the use of the Mortgaged Property in any manner which
would permit any insurer to cancel any insurance policy or void coverage
required to be maintained by this Mortgage.
(c) In the event of foreclosure of this Mortgage or other
transfer of title to the Mortgaged Property all right, title and interest of
Mortgagor in and to any insurance policies then in force shall pass to the
purchaser or grantee.
6. Restrictions on Liens and Encumbrances. Except for the lien
of this Mortgage and the Permitted Exceptions, Mortgagor shall not further
mortgage, nor otherwise encumber the Mortgaged Property nor create or suffer to
exist any lien, charge or encumbrance on the Mortgaged Property, or any part
thereof, whether superior or subordinate to the lien of this Mortgage and
whether recourse or non-recourse.
7. Due on Sale and Other Transfer Restrictions. Except as
expressly permitted under the Credit Agreement, Mortgagor shall not sell,
transfer, convey or assign all or any portion of, or any interest in, the
Mortgaged Property.
8. Maintenance; No Alteration; Inspection; Utilities. (a)
Mortgagor shall maintain or cause to be maintained all the Improvements in good
condition and repair (ordinary wear and tear excepted) and shall not commit or
suffer any waste of the Improvements. The Improvements shall not be demolished
or materially altered, nor any material additions built, without the prior
written consent of Mortgagee, such consent not to be unreasonably withheld.
(b) Subject to Section 10.3 of the Credit Agreement, Mortgagor
shall pay or cause to be paid utility charges and all other assessments or
charges of a similar nature, whether public or private, affecting the Premises
or any portion thereof.
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9. Condemnation/Eminent Domain. Immediately upon obtaining
knowledge of the institution of any proceedings for the condemnation of the
Mortgaged Property, or any portion thereof, Mortgagor will notify Mortgagee of
the pendency of such proceedings. During the continuance of an Event of
Default, and subject to Section 7.5(i) of the Credit Agreement, Mortgagee is
hereby authorized and empowered by Mortgagor to settle or compromise any claim
in connection with such condemnation and to receive all awards and proceeds
thereof to be held by Mortgagee as collateral to secure the payment and
performance of the Indebtedness and the Obligations. Notwithstanding the
preceding sentence, subject to the provisions of the Credit Agreement and
provided that no Event of Default shall have occurred and be continuing,
Mortgagor shall, at its expense, diligently prosecute any such proceeding
relating to such condemnation, settle or compromise any claims in connection
therewith and receive any awards or proceeds thereof, provided that Mortgagor
shall comply with the applicable provisions of the Credit Agreement.
10. Restoration. Mortgagor will apply insurance proceeds and
condemnation proceeds and awards in accordance with the Credit Agreement.
11. Leases. Except as otherwise provided in the Credit
Agreement, (a) Mortgagor shall not (i) execute an assignment or pledge of any
Lease relating to all or any portion of the Mortgaged Property other than in
favor of Mortgagee, or (ii) without the prior written consent of Mortgagee,
execute or permit to exist any Lease of any of the Mortgaged Property, except
as provided in the Credit Agreement.
(b) As to any Lease relating to all or any portion of the
Mortgaged Property, Mortgagor shall not accept a surrender or terminate,
cancel, rescind, supplement, alter, revise, modify or amend such Lease or
permit any such action to be taken nor shall Mortgagor accept the payment of
rent more than thirty (30) days in advance of its due date, except to the
extent such action or payment occurs either in the ordinary course of business
or according to Mortgagor's reasonable business judgment.
12. Further Assurances/Estoppel Certificates. To further assure
Mortgagee's rights under this Mortgage, Mortgagor agrees upon demand of
Mortgagee to do any act or execute any additional documents (including, but not
limited to, security agreements on any personalty included or to be included in
the Mortgaged Property and a separate assignment of each Lease in recordable
form) as may be reasonably required by Mortgagee to confirm the lien of this
Mortgage and all other rights or benefits conferred on Mortgagee.
13. Mortgagee's Right to Perform. If Mortgagor fails to perform
any of the covenants or agreements of Mortgagor, Mortgagee may at any time (but
shall be under no obligation to) pay or perform the same, and the amount or
cost thereof, as set
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forth in the Credit Agreement, shall immediately be due from Mortgagor to
Mortgagee and the same shall be secured by this Mortgage and shall be a lien on
the Mortgaged Property prior to any right, title to, interest in or claim upon
the Mortgaged Property attaching subsequent to the lien of this Mortgage. No
payment or advance of money by Mortgagee under this Section shall be deemed or
construed to cure Mortgagor's default or waive any right or remedy of
Mortgagee.
14. Materials of Environmental Concern. Mortgagor shall comply
in all respects with Section 8.15 of the Credit Agreement.
15. Events of Default. The occurrence of any Event of Default
as such term is defined in the Credit Agreement shall constitute an Event of
Default hereunder.
16. Remedies.
(a) Subject to the provisions of the Credit Agreement, upon the
occurrence of any Event of Default, in addition to any other rights and
remedies Mortgagee may have pursuant to the Loan Documents, or as provided by
law, and without limitation, (x) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of Section 12 of the Credit Agreement,
automatically the Indebtedness and all other amounts owing under the Notes,
this Mortgage and the other Security Documents immediately shall become due and
payable, and (y) if such event is any other Event of Default, with the consent
of the Required Lenders, the Mortgagee may, or upon the request of the Required
Lenders, the Mortgagee shall, by notice to Mortgagor, declare the Indebtedness
(together with accrued interest thereon) and all other amounts payable under
the Notes, this Mortgage and the other Security Documents to be immediately due
and payable. Except as expressly provided in the Credit Agreement, notice of
intention to accelerate, notice of acceleration, presentment, demand, protest
and all other notices of any kind are hereby expressly waived. In addition,
upon the occurrence of any Event of Default, Mortgagee may immediately take
such action, without notice or demand, as it deems advisable to protect and
enforce its rights against Mortgagor and in and to the Mortgaged Property,
including, but not limited to, the following actions, each of which may be
pursued concurrently or otherwise, at such time and in such manner as Mortgagee
may determine, in its sole discretion, without impairing or otherwise affecting
the other rights and remedies of Mortgagee:
(i) Mortgagee may, to the extent permitted by applicable law,
(A) institute and maintain an action of mortgage foreclosure against all
or any part of the Mortgaged Property, (B) institute and maintain an
action on the Indebtedness or the Notes, (C) sell all or part of the
Mortgaged Property (Mortgagor expressly granting to Mortgagee the power
of sale), or (D) take such other action
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at law or in equity for the enforcement of this Mortgage or any of the
Loan Documents as the law may allow. Mortgagee may proceed in any such
action to final judgment and execution thereon for all sums due
hereunder, together with interest thereon at the Default Rate and all
costs of suit, including, without limitation, reasonable attorneys' fees
and disbursements. Interest at the Default Rate shall be due on any
judgment obtained by Mortgagee from the date of judgment until the date
upon which actual payment is made of the full amount of the judgment.
(ii) Mortgagee may personally, or by its agents, attorneys and
employees and without regard to the adequacy or inadequacy of the
Mortgaged Property or any other collateral as security for the
Indebtedness and Obligations enter into and upon the Mortgaged Property
and each and every part thereof and exclude Mortgagor and its agents and
employees therefrom without liability for trespass, damage or otherwise
(Mortgagor hereby agreeing to surrender possession of the Mortgaged
Property to Mortgagee upon demand at any such time) and use, operate,
manage, maintain and control the Mortgaged Property and every part
thereof. Following such entry and taking of possession, Mortgagee shall
be entitled, without limitation, (x) to lease all or any part or parts
of the Mortgaged Property for such periods of time and upon such
conditions as Mortgagee may, in its discretion, deem proper, (y) to
enforce, cancel or modify any Lease and (z) generally to execute, do and
perform any other act, deed, matter or thing concerning the Mortgaged
Property as Mortgagee shall deem appropriate as fully as Mortgagor might
do.
(b) The holder of this Mortgage, in any action to foreclose it,
shall be entitled to the appointment of a receiver. In case of a foreclosure
sale, the Real Estate may be sold, at Mortgagee's election, in one parcel or in
more than one parcel and Mortgagee is specifically empowered, (without being
required to do so, and in its sole and absolute discretion) to cause successive
sales of portions of the Mortgaged Property to be held.
(c) In the event of any breach of any of the covenants,
agreements, terms or conditions contained in this Mortgage, and notwithstanding
to the contrary any exculpatory or non-recourse language which may be contained
herein, Mortgagee shall be entitled to enjoin such breach and obtain specific
performance of any covenant, agreement, term or condition and Mortgagee shall
have the right to invoke any equitable right or remedy as though other remedies
were not provided for in this Mortgage.
(d) MORTGAGOR AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT
OF RECORD OF THE STATE OF OHIO TO APPEAR FOR AND TO CONFESS JUDGMENT IN
EJECTMENT AGAINST MORTGAGOR (AND, AT THE
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ELECTION OF SAID ATTORNEY, AGAINST ANY PERSON CLAIMING UNDER, BY OR THROUGH
MORTGAGOR) FOR THE RECOVERY BY MORTGAGEE OF POSSESSION OF THE ENTIRE PREMISES
OR, AT THE ELECTION OF SAID ATTORNEY, ANY PORTION OR PORTIONS OF THE PREMISES.
THE FOREGOING AUTHORITY TO CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY ANY
EXERCISE THEREOF BUT SHALL CONTINUE FROM TIME TO TIME UNTIL MORTGAGEE IS FULLY
AND FINALLY VESTED WITH POSSESSION OF THE ENTIRE PREMISES. MORTGAGOR EXPRESSLY
AGREES THAT ANY JUDGMENT ENTERED PURSUANT TO THE FOREGOING AUTHORITY SHALL BE
FINAL AND RELEASES TO MORTGAGEE, AND TO ANY ATTORNEY APPEARING FOR MORTGAGOR OR
MORTGAGEE, ALL ERRORS IN SAID PROCEEDINGS AND ALL LIABILITY THEREFOR. UPON
CONFESSION OF JUDGMENT IN EJECTMENT PURSUANT TO THE FOREGOING AUTHORITY, A WRIT
OF POSSESSION (OR LIKE WRIT APPROPRIATE UNDER THEN APPLICABLE LAW) MAY ISSUE
FORTHWITH WITHOUT ANY PRIOR PROCEEDINGS AND MAY INCLUDE THE COSTS OF MORTGAGEE.
JUDGMENT MAY BE ENTERED PURSUANT TO THE FOREGOING AUTHORITY ON THE BASIS OF AN
AFFIDAVIT MADE ON MORTGAGEE'S BEHALF AND SETTING FORTH THE RELEVANT FACTS, OF
WHICH FACTS SUCH AFFIDAVIT SHALL BE CONCLUSIVE EVIDENCE, AND IF A TRUE COPY OF
THIS MORTGAGE IS FILED IN ANY ACTION FOR SUCH JUDGMENT IT SHALL NOT BE
NECESSARY TO FILE THE ORIGINAL OF THIS MORTGAGE.
17. Right of Mortgagee to Credit Sale. Upon the occurrence of
any sale made under this Mortgage, whether made under the power of sale or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale, Mortgagee may bid for and acquire the Mortgaged Property or any part
thereof. In lieu of paying cash therefor, Mortgagee may make settlement for
the purchase price by crediting upon the Indebtedness or other sums secured by
this Mortgage the net sales price after deducting therefrom the expenses of
sale and the cost of the action and any other sums which Mortgagee is
authorized to deduct under this Mortgage. In such event, this Mortgage, the
Notes and documents evidencing expenditures secured hereby may be presented to
the person or persons conducting the sale in order that the amount so used or
applied may be credited upon the Indebtedness as having been paid.
18. Appointment of Receiver. If an Event of Default shall have
occurred and be continuing, Mortgagee as a matter of right and without notice
to Mortgagor, unless otherwise required by applicable law, and without regard
to the adequacy or inadequacy of the Mortgaged Property or any other collateral
as security for the Indebtedness and Obligations or the interest of Mortgagor
therein, shall have the right to apply to any court having jurisdiction to
appoint a receiver or receivers or other manager of the Mortgaged Property, and
Mortgagor hereby irrevocably consents to such appointment and waives notice of
any application therefor (except as may be required by law). Any such receiver
or receivers shall have all the usual powers and duties of receivers in like or
similar cases and all the powers and duties of Mortgagee in case of entry as
provided in this Mortgage, including, without limitation and to the extent
permitted by law, the right to enter into leases of all or any
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part of the Mortgaged Property, and shall continue as such and exercise all
such powers until the date of confirmation of sale of the Mortgaged Property
unless such receivership is sooner terminated.
19. Extension, Release, etc. (a) Without affecting the lien or
charge of this Mortgage upon any portion of the Mortgaged Property not then or
theretofore released as security for the full amount of the Indebtedness,
Mortgagee may, from time to time and without notice, agree to (i) release any
person liable for the Indebtedness, (ii) extend the maturity or alter any of
the terms of the Indebtedness or any guaranty thereof, (iii) grant other
indulgences, (iv) release or reconvey, or cause to be released or reconveyed at
any time at Mortgagee's option any parcel, portion or all of the Mortgaged
Property, (v) take or release any other or additional security for any
obligation herein mentioned, or (vi) make compositions or other arrangements
with debtors in relation thereto. If at any time this Mortgage shall secure
less than all of the principal amount of the Indebtedness, it is expressly
agreed that any repayments of the principal amount of the Indebtedness shall
not reduce the amount of the lien of this Mortgage until the lien amount shall
equal the principal amount of the Indebtedness outstanding.
(b) No recovery of any judgment by Mortgagee and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect the lien of this Mortgage or any liens,
rights, powers or remedies of Mortgagee hereunder, and such liens, rights,
powers and remedies shall continue unimpaired.
(c) If Mortgagee shall have the right to foreclose this
Mortgage, Mortgagor authorizes Mortgagee at its option to foreclose the lien of
this Mortgage subject to the rights of any tenants of the Mortgaged Property.
The failure to make any such tenants defendant to any such foreclosure
proceeding and to foreclose their rights will not be asserted by Mortgagor as a
defense to any proceeding instituted by Mortgagee to collect the Indebtedness
or to foreclose the lien of this Mortgage.
(d) Unless expressly provided otherwise, in the event that
ownership of this Mortgage and title to the Mortgaged Property or any estate
therein shall become vested in the same person or entity, this Mortgage shall
not merge in such title but shall continue as a valid lien on the Mortgaged
Property for the amount secured hereby.
20. Security Agreement under Uniform Commercial Code. (a) It is
the intention of the parties hereto that this Mortgage shall constitute a
Security Agreement within the meaning of the Uniform Commercial Code (the
"Code") of the State in which the Mortgaged Property is located. If an Event
of Default shall occur under this Mortgage, then in addition to having any
other right or remedy available at law or in equity, Mortgagee shall
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have the option of either (i) proceeding under the Code and exercising such
rights and remedies as may be provided to a secured party by the Code with
respect to all or any portion of the Mortgaged Property which is personal
property (including, without limitation, taking possession of and selling such
property) or (ii) treating such property as real property and proceeding with
respect to both the real and personal property constituting the Mortgaged
Property in accordance with Mortgagee's rights, powers and remedies with
respect to the real property (in which event the default provisions of the Code
shall not apply). If Mortgagee shall elect to proceed under the Code, then ten
days' notice of sale of the personal property shall be deemed reasonable notice
and the reasonable expenses of retaking, holding, preparing for sale, selling
and the like incurred by Mortgagee shall include, but not be limited to,
reasonable attorneys' fees and legal expenses. At Mortgagee's request,
Mortgagor shall assemble the personal property and make it available to
Mortgagee at a place designated by Mortgagee which is reasonably convenient to
both parties.
(b) Mortgagor and Mortgagee agree, to the extent permitted by
law, that: (i) all of the goods described within the definition of the word
"Equipment" are or are to become fixtures on the Real Estate; (ii) this
Mortgage upon recording or registration in the real estate records of the
proper office shall constitute a financing statement filed as a "fixture
filing" within the meaning of Sections 9-313 and 9-402 of the Code; (iii)
Mortgagor is the record owner of the Real Estate; and (iv) the addresses of
Mortgagor and Mortgagee are as set forth on the first page of this Mortgage.
(c) Mortgagor, upon request by Mortgagee from time to time, shall
execute, acknowledge and deliver to Mortgagee one or more separate security
agreements, in form satisfactory to Mortgagee, covering all or any part of the
Mortgaged Property and will further execute, acknowledge and deliver, or cause
to be executed, acknowledged and delivered, any financing statement, affidavit,
continuation statement or certificate or other document as Mortgagee may
reasonably request in order to perfect, preserve, maintain, continue or extend
the security interest under and the priority of this Mortgage and such security
instrument. Mortgagor further agrees to pay to Mortgagee on demand all
reasonable costs and expenses incurred by Mortgagee in connection with the
preparation, execution, recording, filing and re-filing of any such document.
Mortgagor shall from time to time, on request of Mortgagee, deliver to
Mortgagee an inventory in reasonable detail of any of the Mortgaged Property
which constitutes personal property. If Mortgagor shall fail to furnish any
financing or continuation statement within 10 days after request by Mortgagee,
then pursuant to the provisions of the Code, Mortgagor hereby authorizes
Mortgagee, without the signature of Mortgagor, to execute and file any such
financing and continuation statements. The filing of any financing or
continuation statements in the records relating to personal
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property or chattels shall not be construed as in any way impairing the right
of Mortgagee to proceed against any personal property encumbered by this
Mortgage as real property, as set forth above.
21. Assignment of Rents. Mortgagor hereby assigns to Mortgagee
the Rents as further security for the payment of the Indebtedness and
performance of the Obligations, and Mortgagor grants to Mortgagee the right to
enter the Mortgaged Property for the purpose of collecting the same and to let
the Mortgaged Property or any part thereof, and to apply the Rents on account
of the Indebtedness. The foregoing assignment and grant is present and
absolute and shall continue in effect until the Indebtedness is paid in full,
but Mortgagee hereby waives the right to enter the Mortgaged Property for the
purpose of collecting the Rents and Mortgagor shall be entitled to collect,
receive, use and retain the Rents until the occurrence and continuance of an
Event of Default under this Mortgage; such right of Mortgagor to collect,
receive, use and retain the Rents may be revoked by Mortgagee upon the
occurrence and continuance of any Event of Default under this Mortgage by
giving not less than five days' written notice of such revocation to Mortgagor;
in the event such notice is given, Mortgagor shall pay over to Mortgagee, or to
any receiver appointed to collect the Rents, any lease security deposits.
Mortgagor shall not accept prepayments of installments of Rent to become due
for a period of more than one month in advance (except for security deposits
and estimated payments of percentage rent, if any, or as otherwise provided in
such Lease).
22. Additional Rights. The holder of any subordinate lien on
the Mortgaged Property shall have no right to terminate any Lease whether or
not such Lease is subordinate to this Mortgage nor shall any holder of any
subordinate lien join any tenant under any Lease in any action to foreclose the
lien or modify, interfere with, disturb or terminate the rights of any tenant
under any Lease. By recordation of this Mortgage all subordinate lienholders
are subject to and notified of this provision, and any action taken by any such
lienholder contrary to this provision shall be null and void. Upon the
occurrence of any Event of Default, Mortgagee may, in its sole discretion and
without regard to the adequacy of its security under this Mortgage, apply all
or any part of any amounts on deposit with Mortgagee under this Mortgage
against all or any part of the Indebtedness. Any such application shall not be
construed to cure or waive any Default or Event of Default or invalidate any
act taken by Mortgagee on account of such Default or Event of Default.
23. Notices. All notices, requests, demands and other
communications hereunder shall be given in accordance with subsection 10.7 of
the Credit Agreement to Mortgagor and Mortgagee as specified therein.
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24. No Oral Modification. This Mortgage may not be amended,
supplemented, terminated or otherwise modified except in accordance with
subsection 14.1 of the Credit Agreement. Any agreement made by Mortgagor and
Mortgagee after the date of this Mortgage relating to this Mortgage shall be
superior to the rights of the holder of any intervening or subordinate lien or
encumbrance.
25. Partial Invalidity. In the event any one or more of the
provisions contained in this Mortgage shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision hereof, but each shall
be construed as if such invalid, illegal or unenforceable provision had never
been included. Notwithstanding to the contrary anything contained in this
Mortgage or in any provisions of the Indebtedness or Loan Documents, the
obligations of Mortgagor and of any other obligor under the Indebtedness or
Loan Documents shall be subject to the limitation that Mortgagee shall not
charge, take or receive, nor shall Mortgagor or any other obligor be obligated
to pay to Mortgagee, any amounts constituting interest in excess of the maximum
rate permitted by law to be charged by Mortgagee.
26. Mortgagor's Waiver of Rights. To the fullest extent
permitted by law, Mortgagor waives the benefit of all laws now existing or that
may subsequently be enacted providing for (i) any appraisement before sale of
any portion of the Mortgaged Property, (ii) any extension of the time for the
enforcement of the collection of the Indebtedness or the creation or extension
of a period of redemption from any sale made in collecting such debt and (iii)
exemption of the Mortgaged Property from attachment, levy or sale under
execution or exemption from civil process. To the full extent Mortgagor may do
so, Mortgagor agrees that Mortgagor will not at any time insist upon, plead,
claim or take the benefit or advantage of any law now or hereafter in force
providing for any appraisement, valuation, stay, exemption, extension or
redemption, or requiring foreclosure of this Mortgage before exercising any
other remedy granted hereunder and Mortgagor, for Mortgagor and its successors
and assigns, and for any and all persons ever claiming any interest in the
Mortgaged Property, to the extent permitted by law, hereby waives and releases
all rights of redemption, valuation, appraisement, stay of execution, notice of
election to mature or declare due the whole of the secured indebtedness and
marshalling in the event of foreclosure of the liens hereby created.
27. Remedies Not Exclusive. Mortgagee shall be entitled to
enforce payment of the Indebtedness and performance of the Obligations and to
exercise all rights and powers under this Mortgage or under any of the other
Loan Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Indebtedness and Obligations may now or
hereafter be otherwise secured, whether by mortgage, security
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agreement, pledge, lien, assignment or otherwise. Neither the acceptance of
this Mortgage nor its enforcement, shall prejudice or in any manner affect
Mortgagee's right to realize upon or enforce any other security now or
hereafter held by Mortgagee, it being agreed that Mortgagee shall be entitled
to enforce this Mortgage and any other security now or hereafter held by
Mortgagee in such order and manner as Mortgagee may determine in its absolute
discretion. No remedy herein conferred upon or reserved to Mortgagee is
intended to be exclusive of any other remedy herein or by law provided or
permitted, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute. Every power or remedy given by any of the Loan Documents to Mortgagee
or to which it may otherwise be entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by
Mortgagee. In no event shall Mortgagee, in the exercise of the remedies
provided in this Mortgage (including, without limitation, in connection with
the assignment of Rents to Mortgagee, or the appointment of a receiver and the
entry of such receiver on to all or any part of the Mortgaged Property), be
deemed a "mortgagee in possession," and Mortgagee shall not in any way be made
liable for any act, either of commission or omission, in connection with the
exercise of such remedies.
28. Multiple Security. If (a) the Premises shall consist of one
or more parcels, whether or not contiguous and whether or not located in the
same county, or (b) in addition to this Mortgage, Mortgagee shall now or
hereafter hold one or more additional mortgages, liens, deeds of trust or other
security (directly or indirectly) for the Indebtedness upon other property in
the State in which the Premises are located (whether or not such property is
owned by Mortgagor or by others) or (c) both the circumstances described in
clauses (a) and (b) shall be true, then to the fullest extent permitted by law,
Mortgagee may, at its election, commence or consolidate in a single foreclosure
action all foreclosure proceedings against all such collateral securing the
Indebtedness (including the Mortgaged Property), which action may be brought or
consolidated in the courts of any county in which any of such collateral is
located. Mortgagor acknowledges that the right to maintain a consolidated
foreclosure action is a specific inducement to Mortgagee to extend the
Indebtedness, and Mortgagor expressly and irrevocably waives any objections to
the commencement or consolidation of the foreclosure proceedings in a single
action and any objections to the laying of venue or based on the grounds of
forum non conveniens which it may now or hereafter have. Mortgagor further
agrees that if Mortgagee shall be prosecuting one or more foreclosure or other
proceedings against a portion of the Mortgaged Property or against any
collateral other than the Mortgaged Property, which collateral directly or
indirectly secures the Indebtedness, or if Mortgagee shall have obtained a
judgment of foreclosure and sale or similar judgment against such collateral,
then, whether or not such proceedings are being
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maintained or judgments were obtained in or outside the State in which the
Premises are located, Mortgagee may commence or continue foreclosure
proceedings and exercise its other remedies granted in this Mortgage against
all or any part of the Mortgaged Property and Mortgagor waives any objections
to the commencement or continuation of a foreclosure of this Mortgage or
exercise of any other remedies hereunder based on such other proceedings or
judgments, and waives any right to seek to dismiss, stay, remove, transfer or
consolidate either any action under this Mortgage or such other proceedings on
such basis. Neither the commencement nor continuation of proceedings to
foreclose this Mortgage nor the exercise of any other rights hereunder nor the
recovery of any judgment by Mortgagee in any such proceedings shall prejudice,
limit or preclude Mortgagee's right to commence or continue one or more
foreclosure or other proceedings or obtain a judgment against any other
collateral (either in or outside the State in which the Premises are located)
which directly or indirectly secures the Indebtedness, and Mortgagor expressly
waives any objections to the commencement of, continuation of, or entry of a
judgment in such other proceedings or exercise of any remedies in such
proceedings based upon any action or judgment connected to this Mortgage, and
Mortgagor also waives any right to seek to dismiss, stay, remove, transfer or
consolidate either such other proceedings or any action under this Mortgage on
such basis. It is expressly understood and agreed that to the fullest extent
permitted by law, Mortgagee may, at its election, cause the sale of all
collateral which is the subject of a single foreclosure action at either a
single sale or at multiple sales conducted simultaneously and take such other
measures as are appropriate in order to effect the agreement of the parties to
dispose of and administer all collateral securing the Indebtedness (directly or
indirectly) in the most economical and least time-consuming manner.
29. Successors and Assigns. All covenants of Mortgagor
contained in this Mortgage are imposed solely and exclusively for the benefit
of Mortgagee and its successors and assigns, and no other person or entity
shall have standing to require compliance with such covenants or be deemed,
under any circumstances, to be a beneficiary of such covenants, any or all of
which may be freely waived in whole or in part by Mortgagee at any time if in
its sole discretion it deems such waiver advisable. All such covenants of
Mortgagor shall run with the land and bind Mortgagor, the successors and
assigns of Mortgagor (and each of them) and all subsequent owners,
encumbrancers and tenants of the Mortgaged Property, and shall inure to the
benefit of Mortgagee, its successors and assigns. The word "Mortgagor" shall
be construed as if it read "Mortgagors" whenever the sense of this Mortgage so
requires and if there shall be more than one Mortgagor, the obligations of the
Mortgagors shall be joint and several.
30. No Waivers, etc. Any failure by Mortgagee to insist upon
the strict performance by Mortgagor of any of the
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terms and provisions of this Mortgage shall not be deemed to be a waiver of any
of the terms and provisions hereof, and Mortgagee, notwithstanding any such
failure, shall have the right thereafter to insist upon the strict performance
by Mortgagor of any and all of the terms and provisions of this Mortgage to be
performed by Mortgagor. Mortgagee may release, regardless of consideration and
without the necessity for any notice to or consent by the holder of any
subordinate lien on the Mortgaged Property, any part of the security held for
the obligations secured by this Mortgage without, as to the remainder of the
security, in anywise impairing or affecting the lien of this Mortgage or the
priority of such lien over any subordinate lien.
31. Governing Law, etc. This Mortgage shall be governed by and
construed in accordance with the laws of the State in which the Premises are
located, except that Mortgagor expressly acknowledges that by its terms the
Note shall be governed and construed in accordance with the laws of the State
of New York, without regard to principles of conflict of law, and for purposes
of consistency, Mortgagor agrees that in any in personam proceeding related to
this Mortgage the rights of the parties to this Mortgage shall also be governed
by and construed in accordance with the laws of the State of New York governing
contracts made and to be performed in that State, without regard to principles
of conflict of law.
32. Waiver of Trial by Jury. Mortgagor and Mortgagee each
hereby irrevocably and unconditionally waive trial by jury in any action,
claim, suit or proceeding relating to this Mortgage and for any counterclaim
brought therein. Mortgagor hereby waives all rights to interpose any
counterclaim in any suit brought by Mortgagee hereunder and all rights to have
any such suit consolidated with any separate suit, action or proceeding.
33. Certain Definitions. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Mortgage shall be used interchangeably in singular or plural form and the
word "Mortgagor" shall mean "each Mortgagor or any subsequent owner or owners
of the Mortgaged Property or any part thereof or interest therein," the word
"Mortgagee" shall mean "Mortgagee or any subsequent holder of the Notes," the
word "Note" shall mean "the Note or Notes or any other evidence of indebtedness
secured by this Mortgage," the word "person" shall include any individual,
corporation, partnership, trust, unincorporated association, government,
governmental authority, or other entity, and the words "Mortgaged Property"
shall include any portion of the Mortgaged Property or interest therein.
Whenever the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice versa. The captions in
this Mortgage are for convenience or reference only and in no way limit or
amplify the provisions hereof.
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34. Protective Advances. Mortgagee shall have the right, but
not the obligation, to make protective advances with respect to the Mortgaged
Property for the payment of taxes, assessments, insurance premiums, repairs,
maintenance and other costs incurred in the protection of the Mortgaged
Property as contemplated by Section 5301.233 of the Ohio Revised Code, and such
protective advances, together with interest thereon at the Default Rate from
the date of each such advance until it is repaid in full, shall be secured by
this Mortgage to the fullest extent and with the highest priority contemplated
by such Section 5301.233.
35. Mortgagee's Rights Under Mechanics' Lien Laws. Mortgagee
is hereby authorized and empowered, at its option, to do as Mortgagee all
things provided in the mechanics' lien laws of Ohio, including without
limitation, Section 1311.14 of the Ohio Revised Code, and all amendments and
supplements thereto.
36. Future Advances. This Mortgage is executed and delivered to
secure, among other things, obligatory future advances pursuant to the terms of
the Credit Agreement. It is understood and agreed that this Mortgage secures
all present and future advances made for the benefit of Mortgagor pursuant to
the terms of the Credit Agreement and that the lien of such future advances
shall relate back to the date of this Mortgage.
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This Mortgage has been duly executed by Mortgagor on the date
first above written.
Signed and acknowledged XXXXXXXX CORPORATION
in the presence of:
/s/ XXXXXXX X. XXXXXXX By: /s/ XXXXXX X. XXXXX
--------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxx
Vice President
/s/ XXXX XXXXXXXX
---------------------------
Name: Xxxx Xxxxxxxx
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 11th day of June, 1997, before me personally came Xxxxxx
X. Xxxxx, to me known, who, being by me duly sworn, did depose and say that he
resides at 000 Xxxxxx Xxxxx, Xx. Xxxxxxxx, Xxxxxxxx; that he is a Vice
President of Xxxxxxxx Corporation, the corporation described in and which
executed the foregoing instrument; and that he signed his name thereto by
authority of the board of directors of said corporation.
/s/ XXXXX X. XXXXXX
-------------------------
Notary Public
[Notarial Stamp]
XXXXX X. XXXXXX
NOTARY PUBLIC, State of New York
No. 01M05071845
Qualified in New York County
Commission Expires January 21, 1999
This Open-End Mortgage was prepared by:
Xxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
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Schedule A
Situated in the City of Ashland, County of Ashland, and State of Ohio: And
known as being a part of the Southeast Quarter of Section 7 and a part of the
Southwest Quarter of Section 8, Township 22, Range 16 and more fully described
as follows: Commencing for boundary at a railroad spike set at the point of
intersection of the East right-of-way line of Cottage Street (60 feet wide) and
the South right-of-way of a certain alley (16.0 feet wide), said alley location
being recorded in Plat Book 4, Page 13 of the Ashland County Deed Records;
thence North 80 degrees 56'20" East, along the South right-of-way of said
alley, a distance of 422.11 feet to an iron pin found at the East right-of-way
of a certain alley (10 feet wide); thence North 01 degree 21'48" West, along
the East right-of-way of said 10 foot alley, a distance of 58.66 feet to an
iron pin found at the Southwest corner of Xxx Xx. 000, Xxxxx Xxxxxxx, xxx owned
by F. and X. Xxxxxxx, as recorded in Volume 558, Page 669 of the Ashland County
Deed Records; thence South 85 degrees 12'49" East, along the South line of said
Xxx Xx. 000, distance of 471.63 feet to an iron pin found at the Southeast
corner of said lot, said iron pin also being on the West right-of-way line of
Orange Street (50 feet wide); thence South 00 degrees 01'04" East along the
West right-of-way line of Orange Street, a distance of 949.08 feet to an iron
pin set on the North right-of-way line of the railroad; now owned by the
Ashland Community Improvement Corporation as recorded in Volume 542, Page 669
of the Ashland County Deed Records; thence North 62 degrees 41'11" West, along
said railroad right-of-way line, a distance of 79.70 feet to an iron pin set;
thence continuing along said railroad right-of-way in a Northwesterly direction
and on a curve to the right (Delta = 10 05'25"; Radius = 1402.40 feet) a chord
bearing of North 56 degrees 10'11" West and chord distance of 246.66 feet to an
iron pin set; thence North 74 degrees 02'23" West, along said railroad
right-of-way, a distance of 15.00 feet to an iron pin set; thence North 47
degrees 29'55" West, along said right-of-way line, a distance of 54.30 feet to
the Southwesterly corner of a 3-story brick building; thence North 44 degrees
17'15" West along said right-of-way line and the Southwesterly line of said
3-story brick building, a distance of 142.00 feet to an angle point in said
building; thence North 38 degrees 50'48" West, along said right-of-way and
building line, a distance of 123.22 feet to the Northwesterly corner of a
2-story brick building; thence North 50 degrees 05'00" East, along the
Northerly line of said 2-story brick building, a distance of 5.00 feet to a
point; thence North 37 degrees 05'30" West, along said railroad right-of-way
line a distance of 140.00 feet to an iron pin found; thence North 40 degrees
18'17" West, along said railroad right-of-way line, a distance of 121.02 feet
to an iron pin found; thence North 45 degrees 11'17" West, along said railroad
right-of-way, a distance of 303.76 feet to an iron pin found on the east
right-of-way line xx Xxxxxxx Xxxxxx; thence North 09 degrees 03'40" West, along
the East right-of-way line of Cottage Street, a distance of 30.10 feet to the
place of beginning, containing 11.416 acres but subject to all legal highways
and easements of record.
