EXHIBIT 10.14
OPEN-END MORTGAGE
AND ASSIGNMENT OF RENTS
This Open-End Mortgage is executed and delivered at Columbus, Ohio as of this
first day of April, 1996 by SAGI REALTY LTD., ("GRANTOR"), an Ohio limited
liability company whose mailing address is 000 Xxxxxxx Xxxx., Xxxxxxxx, Xxxx
00000 to NATIONAL CITY BANK, COLUMBUS ("Bank"), a national banking association
having its banking office at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000.
1. GRANT OF INTEREST. In order to induce Bank to extend or have outstanding
such credit to or for the account of Grantor as Grantor may from time to
time request and as Bank in its sole discretion may from time to time be
willing to extend or have outstanding, and in order to induce Bank to take
security interests in or purchase such obligations of Borrower as Borrower
may from time to time request and as Bank in its sole discretion may from
time to time be willing to take or purchase (each such credit extension if
any, and each such taking or purchase, if any, to be in such form and upon
such terms, subject to such conditions, and in accordance with such other
provisions as Bank in its sole discretion shall deem advisable), and in
consideration thereof and for other valuable considerations, Grantor
hereby grants, mortgages, sells, conveys, and warrants to Bank, the
following real property (the "PREMISES"):
Situated in the Township of Prairie, Franklin County, Ohio as is more
particularly described on Exhibit A, which Exhibit is attached to and made
a part of this Mortgage;
together with a security interest in all fixtures that are now or
hereafter related to the Premises or any part thereof, and any and all
replacements and substitutions therefor and additions and accessions
thereto, and all Proceeds of all or any part of the property hereinbefore
described;
together with all awards, damages, and other compensation of any kind made
or to be made to any Person or Persons for any taking, either permanent or
temporary, by eminent domain or other governmental action, of all or any
part of the Collateral which awards and compensation are hereby assigned
to Bank; and
together with all appurtenances to, and all issues, leases, profits,
rents, rights, and privileges of the Premises,
subject, however, to all legal highways, restrictions, and easements of
record, current taxes and assessments not yet due, and the following
additional encumbrances (IF NONE, ENTER "NONE"):
None .
2. OBLIGATIONS SECURED. This Mortgage is given to secure payment of the
Subject Debt. "SUBJECT DEBT" means, collectively, the principal of,
interest on, fees, late charges, premiums, and other amounts owing under a
certain promissory note made by Grantor on April 1, 1996 in the face
amount of TWO MILLION AND 00/100 DOLLARS ($2,000,000.00), and payable to
the order of Bank, and all amendments, modifications, extensions, and
renewals of any thereof, to the extent that the total loan indebtedness
secured by this Mortgage, exclusive of the interest thereon, does not at
any time exceed TWO MILLION AND 00/100 DOLLARS ($2,000,000.00), plus all
unpaid advances of Bank with respect to the Premises for the payment of
taxes, assessments, insurance premiums, or costs incurred in the
protection or operation of the Premises, and all other obligations of
Grantor under this Mortgage.
3. DEFINITIONS. As used in this Mortgage, except where the context clearly
requires otherwise, "Affiliate" means, when used with reference to any
Person (the "subject"), a Person that is in control of, under the control
of, or under common control with, the subject, the term "control" meaning
the possession, directly or indirectly, of the power to direct the
management or policies of a Person, whether through the ownership of
voting securities, by contract, or otherwise; "Bank Debt" means,
collectively, all Debt to Bank, whether incurred directly to Bank or
acquired by it by purchase, pledge, or otherwise, and whether participated
to or from Bank in whole or in part; "Collateral" means the Premises and
all other property, whether real, personal, or mixed, tangible or
intangible, now or hereafter existing, that is subject to the lien of this
Mortgage or the security interest granted pursuant to this Mortgage;
"Commitment" means any enforceable obligation, whether created orally or
in writing, whether arising by contract, estoppel, or otherwise, whether
conditional or unconditional, on the part of Bank to extend credit to or
for the account of any Person or Persons; "Debt" means, collectively, all
obligations of the Person or Persons in question, including, without
limitation, every such obligation whether owing by one such Person alone
or with one or more other Persons in a joint, several, or joint and
several capacity, whether now owing or hereafter arising, whether owing
absolutely or contingently, whether created by loan, overdraft, guaranty
of payment, or other contract, or by quasi-contract, tort, statute, other
operation of law, or otherwise; "Default" means (a) the nonpayment of the
Subject Debt or any part thereof when due or (b) the occurrence or
existence of any event, condition, or other thing (other than any event,
condition, or other thing which would constitute a "Default" pursuant to
the next preceding clause (a) which gives (or which with the lapse of any
applicable grace period, the giving of notice, or both would give) Bank
the right to accelerate or which automatically accelerates the maturity of
any of the Subject Debt; "Environmental Law" means the Clean Air Act (42
USC 7401 et seq.), Comprehensive Environmental Response, Compensation, and
Liability Act (42 USC 9601 et seq.), the Hazardous Material Transportation
Act (49 USC 1801 et seq.), the Resource Conservation and Recovery Act (42
USC 5901 et seq.), the Federal Water Pollution Control Act (33 USC 1251 et
seq.), the Toxic Substances Control Act (15 USC 2601 et seq.) and the
Occupational Safety and Health Act (29 USC 651 et seq.), as such laws have
been or hereafter may be amended, and the regulations promulgated pursuant
thereto, and any and all similar present or future federal, state, or
local laws and the regulations promulgated pursuant thereto; "Hazardous
Material" means any chemical, material, or substance which could be
detrimental to animal health, human health, vegetation, the environment,
or the Premises which
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is, or the disposal, manufacture, Release, storage, or transport of which
is, or exposure to which is, prohibited, restricted, or otherwise
regulated under any Environmental Law; "Mortgage" means this Open-End
Mortgage (including, without limitation, each amendment, if any, hereto);
"Obligor" means any Person who, or any of whose property, shall at the
time in question be obligated in respect of all or any part of the Bank
Debt of Grantor and (in addition to Grantor) includes, without limitation,
co-makers, indorsers, guarantors, pledgors, hypothecators, mortgagors, and
any other Person who agrees, conditionally or otherwise, to make any loan
to, purchase from, or investment in, any other Obligor or otherwise assure
such other Obligor's creditors or any of them against loss; "Person" means
an individual or entity of any kind, including, without limitation, any
association, company, cooperative, corporation, partnership, trust,
governmental body, or any other form or kind of entity; "Prime Rate" means
the fluctuating rate per annum which is publicly announced from time to
time by Bank as being its so-called "prime rate" or "base rate" thereafter
in effect, with each change in the Prime Rate automatically, immediately,
and without notice changing the Prime Rate thereafter applicable
thereunder, it being acknowledged that the Prime Rate is not necessarily
the lowest rate of interest then available from Bank on fluctuating-rate
loans; "Proceeds" means whatever is received or receivable upon sale,
exchange, collection, or other disposition of any property or Proceeds,
whether directly or indirectly, and includes, without limitation, the
proceeds of any casualty, liability, or title insurance relating to any
such property and any goods or other property returned after any such
sale, exchange, collection, or other disposition; "Related Writing-" means
this Mortgage and any indenture, note, guaranty, assignment, mortgage,
security agreement, subordination agreement, notice, financial statement,
legal opinion, certificate, or other writing of any kind pursuant to which
all or any part of the Bank Debt of Grantor is issued, which evidences or
secures all or any part of the Bank Debt of Grantor, which governs the
relative rights and priorities of Bank and one or more other Persons to
payments made by, or the property of, any Obligor, which is delivered to
Bank pursuant to another such writing, or which is otherwise delivered to
Bank by or on behalf of any Person (or any employee, officer, auditor,
counsel, or agent of any Person) in respect of or in connection with all
or any part of the Bank Debt of Grantor; "Release" means any deposit,
discharge, dispersal, disposal, emission, injection, leaching, leaking,
migration, transport, or other movement through any medium, whether indoor
or outdoor, whether ambient air, ground water, surface water, soil, or
subsurface strata; and the foregoing definitions shall be applicable to
the respective plurals of the foregoing defined terms.
4. REPRESENTATIONS AND WARRANTIES. Grantor represents and warrants to Bank as
follows:
4.1 EXISTENCE. Grantor is a limited liability company organized and in
good standing under Ohio law.
4.2 AUTHORITY. Each Person, if any, executing and delivering this
Mortgage on behalf of Grantor or any other Person has been duly
authorized to do so, and this Mortgage is valid and enforceable
against Grantor in accordance with its terms.
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4.3 OWNERSHIP. Grantor is lawfully seized in fee simple of all of the
Collateral absolutely free from any assignment, attachment,
encumbrance, lease, license, mortgage, security interest, or other
lien, and free from any other claim, right, or interest of any kind,
except for any described in section 1 or any in favor of or
consented to by Bank. Grantor has the lawful right to grant,
mortgage, sell, and convey the Collateral to Bank pursuant to this
Mortgage. No assignment, financing statement, or other writing
(except any evidencing any lien or interest expressly permitted by
this Mortgage) describing the Collateral or any part thereof is on
file in any public office.
4.4 COMPLIANCE WITH LAW. Grantor and all other Persons, if any,
occupying, operating, or using the Premises or any part thereof have
at all times been and continue to be in compliance with all
requirements imposed by law, whether federal, state, or local,
whether statutory, regulatory, or other, including, without
limitation; (a) all Environmental Laws; (b) all approvals,
certifications, licenses, permits, and other authorizations required
by any Environmental Law for the conduct of any activity upon or
within the Premises; and (c) all zoning ordinances applicable to the
occupancy, operation, and use of the Premises or any part thereof.
Without limiting the generality of the foregoing,
(i) no condition exists at, on, or under the Premises which would
give rise to any liability under any Environmental Law and
(ii) Grantor is not on notice that the Premises or any part thereof
has been placed on any registry of sites containing Hazardous
Materials or that there has occurred any violation at, on, or
under the Premises or any part thereof of (A) any
Environmental Law, (B) any approval, certification, license,
permit, or other authorization required by any Environmental
Law for the conduct of any activity upon or within the
Premises, or (C) any zoning ordinance.
5. FURTHER ASSURANCE. Grantor, at Grantor's expense, will make and do all
such acts and things (including, without limitation, the delivery to Bank
of any chattel paper, document, instrument, or other writing of any kind
the possession of which perfects a security interest therein) as Bank may
from time to time require for the better evidencing, perfection,
protection, or validation of, or realization of the benefits of, this
Mortgage or the security interest granted pursuant to this Mortgage.
Without limiting the generality of the foregoing, Grantor will, at
Grantor's expense, upon each request of Bank, (a) warrant and defend the
Collateral to Bank and its successors and assigns and the claims and
demand of all Persons whatever, (b) sign and file or permit Bank to file
such financing statements, mortgages, and other writings as Bank may from
time to time require and in such public offices as Bank may from time to
time require; (c) comply with every other requirement deemed necessary by
Bank for the perfection of the lien of this Mortgage
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or the security interest granted pursuant to this Mortgage; and (d)
execute and deliver such affidavits, assignments, financing statements,
indorsements of specific items of Collateral, mortgages, powers of
attorney, security agreements, and other writings as Bank may from time to
time require, each in such form and substance satisfactory to Bank.
Without diminishing or impairing any obligation of Grantor under this
Mortgage, a carbon, photographic, or other reproduction of this Mortgage
shall be sufficient as a financing statement.
6. NOTICE. Grantor will give Bank
(a) not less than seven (7) days' prior written notice of any change in
circumstances which affects or may affect the continuing efficacy of
this Mortgage as the first priority lien (subject to any described
in section 1 or any in favor of or consented to by Bank) on the
Collateral or any part thereof,
(b) immediate written notice if any Person other than Grantor or Bank
claims any lien or other right or interest of any kind (except for
any described in section 1 or any in favor of or expressly consented
to by Bank) in any of the Collateral,
(c) immediate notice whenever any legal proceeding relating to the
Premises shall have been commenced before any judicial or
administrative tribunal, arbitrator, or mediator, or whenever any
such proceeding shall have been threatened, or
(d) immediate written notice whenever Grantor learns or has reason to
believe that the Premises or any part thereof has been placed on any
registry of Hazardous Material disposal sites or that there has
occurred any violation at, on, or under the Premises or any part
thereof of any Environmental Law or of any approval, certification,
license, permit, or other authorization required by any
Environmental Law for the conduct of any activity upon or within the
Premises, or any violation of any zoning ordinance upon or within
the Premises.
7. RECORDS. Grantor will at all times keep accurate and complete records of
the Collateral. Bank (or one or more Persons selected by Bank) shall have
the right at all reasonable times to examine, inspect, and make extracts
from Grantor's books and records and to examine, appraise, and protect the
Collateral. Without limiting the generality of the foregoing Bank (or one
or more Persons selected by Bank) shall have the right, at any time and
from time to time, to enter upon the Premises and conduct such appraisals,
audits, examinations, inspections, site assessments, and tests as Bank
shall deem advisable in order to comply with applicable law or to
determine whether Grantor is in compliance with sections 10 and 12 of this
Mortgage. Bank shall have no obligation whatever to conduct any such
appraisals, audits, examinations, inspections, site assessments, or tests
or disclose the results thereof, or having done so any one or more times,
to thereafter continuing doing so. Grantor will reimburse Bank, on Bank's
demand from time to time, for any and all fees, costs, and expenses
(including, without limitation, the fees and disbursements of legal
counsel) incurred by
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Bank in connection with any such appraisal, audit, examination,
inspection, site assessment, or test. If any amount owing under this
Mortgage is not paid when due, then, and in each such case, Grantor shall
pay, on Bank's demand, interest on that amount from the due date thereof
until paid in full at a fluctuating rate equal to four percent (4%) per
annum plus the Prime Rate.
8. ADDITIONAL COLLATERAL.
8.1 DISPOSITIONS AND ENCUMBRANCES. Grantor will not, without in each
case obtaining Bank's consent,
(a) sell or otherwise dispose of any Collateral or any interest
therein or
(b) suffer or permit any Collateral (i) to be or become subject to
any assignment, attachment, encumbrance, lease, license,
mortgage, security interest, or other lien, and free from any
other claim, right, or interest of any kind, except for any
described in section l or any in favor of or consented to by
Bank or (ii) to be described in any mortgage, financing
statement, or other- writing, except any evidencing any lien
or interest expressly permitted by this Mortgage.
8.2 ASSIGNMENT OF RENTS. As additional security thereunder, Borrower
hereby assigns to Lender all rents of the Property, provided that
Borrower shall, prior to acceleration under the provisions hereof or
abandonment of the Property and unless otherwise agreed to in
writing by Borrower and Lender, have the right to collect and retain
such rents as they may become due and payable.
9. MOVEMENT AND DETACHMENT FROM REAL PROPERTY. Grantor will not suffer or
permit any improvements or fixtures now or hereafter subject to the lien
of this Mortgage to be moved or detached from the Premises if such
movement or detachment diminishes the value of the Premises.
10. MAINTENANCE OF GOODS, TAXES, AND PRESERVATION COSTS. Grantor will maintain
all improvements and fixtures now or hereafter subject to the lien of this
Mortgage in good condition. Grantor will pay promptly all assessments,
levies, taxes, and other charges now owing or hereafter arising in
connection with this Mortgage and the Collateral, and will pay all repair,
maintenance, and preservation costs in respect thereof. If Grantor does
not do so, then, and in each such case, Bank shall have the right, at its
option, to pay the same, and Grantor will, on Bank's demand, reimburse
Bank for all amounts Bank so pays. Grantor will seek such reductions in
the assessments, levies, taxes, and other charges on the Collateral or
such thereof as Bank shall from time to time request, and prosecute in
good faith all complaints and appeals in connection therewith, all without
expense to Bank. Grantor will, upon each request of Bank, furnish Bank
with such advances, assurances (including, without limitation, a surety
bond from a surety satisfactory to Bank), and deposits, in each case on
terms satisfactory to Bank, in order to ensure that Grantor will perform
Grantor's obligations under this section 10.
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11. INSURANCE. Grantor will at all times keep all improvements and fixtures
now or hereafter existing upon or within the Premises insured under
so-called "causes of loss-special form" policies of insurance issued by
such companies and in such amounts (but in no case, except in the case of
flood insurance, less than the full replacement value thereof or the
amount necessary to prevent the operation of any applicable coinsurance
provision, whichever amount shall be greater), as shall be acceptable to
Bank. Grantor will at all times maintain flood insurance as required by
the Flood Disaster Protection Act of 1973, as amended from time to time,
and the regulations promulgated thereunder, and will at all times maintain
any additional flood insurance required by Bank. Grantor will at all times
maintain so-called "commercial general liability" insurance with such
insurers and in such amounts as shall be acceptable to Bank. Any
determination by Bank regarding the acceptability of the issuer or the
amount of any insurance policy shall be deemed to have been made without
any representation or warranty of any kind, Grantor hereby assuming the
burden of ensuring that each such issuer and each such amount is adequate
for the protection of Grantor and all other Persons.
11.1 POLICIES. Grantor will cause each policy of insurance covering any
improvements or fixtures existing upon or within the Premises to (a)
require the insurer to give Bank written notice not less than thirty
(30) days prior to any cancellation, expiration, modification, or
non-renewal of the policy, (b) have attached thereto (i) a standard
mortgagee's or lender's loss payable endorsement in favor of Bank,
entitling Bank to collect any and all proceeds payable under the
policy and providing in effect that the rights and interests of Bank
thereunder are independent of, and shall not be diminished or
impaired by, any action, inaction, or breach of condition on the
part of Grantor and (ii) a waiver of subrogation endorsement, and
(c) be otherwise in form and substance satisfactory to Bank. Grantor
will seasonably pay all premiums for the foregoing policies of
insurance and will cause the issuer of each such policy to deliver
an original counterpart thereof directly to Bank.
11.2 ASSIGNMENT. Grantor hereby assigns to Bank any returned or unearned
premium due upon cancellation of any such insurance and directs
insurer to pay to Bank all amounts so due, but only to the extent of
the outstanding balance then due and payable on this Note, provided
that, in the event of a casualty loss and if Grantor is not
otherwise in Default, any such proceeds shall be deposited in an
escrow account with Bank to be utilized for the rebuilding of the
improvements to the extent rebuilding is feasible, and if rebuilding
is determined by the parties not to be feasible, then such proceeds
shall be applied by Bank to any outstanding balance then due and
owing on the Note. All or any portion of amounts received by Bank in
payment of insurance losses or returned or unearned premiums may, at
Bank's option, be applied to the Subject Debt (with such allocation
to the respective parts thereof and the respective due dates thereof
as Bank in its sole discretion may from time to time deem advisable)
or to the repair, replacement, or restoration of the improvements or
fixtures insured.
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11.3 ADJUSTMENTS. Grantor, in the event of loss, but only if Grantor is
in Default, hereby irrevocably appoints Bank as Grantor's
attorney-in-fact to adjust all insurance losses, to sign all
applications, receipts, releases, and other writings necessary to
collect any such loss and any returned or unearned premiums, to
execute proofs of loss, to make settlements, to indorse and collect
any check or other item payable to Grantor issued in connection
therewith, and to apply the same to payment of the Subject Debt as
hereinbefore provided.
11.4 INSURANCE COLLATERAL ACCOUNT. If Grantor does not maintain insurance
pursuant to this section, then, and in each such case, Bank shall
have the right to obtain such insurance or obtain insurance covering
only Bank's interest; and, if Bank elects to do either, Grantor
will, on Bank's demand, reimburse Bank for all amounts Bank expends
in doing so. Bank shall have the right to require Grantor, at any
time and from time to time, to maintain with Bank, in a non-interest
bearing account (the "Insurance Collateral Account") over which Bank
shall have sole dominion and control and from which only Bank may
withdraw funds, a deposit balance in an amount equal to one hundred
ten percent (110%) of one/twelfth (l/12th) of the aggregate annual
premiums under all policies, of insurance required under this
Mortgage. Each deposit to the Insurance Collateral Account shall be
subject to Bank's general rules and regulations except to the
extent, if any, inconsistent with this Mortgage. Bank shall have the
right (but no obligation) withdraw funds from the Insurance
Collateral Account at any time and from time to time and to use the
same to obtain insurance as hereinbefore provided, or, after the
occurrence of any Default, for application to any Subject Debt. Bank
in its discretion may from time to time release to Grantor (or to
Grantor's order) all or any of the funds then held in the Insurance
Collateral Account, but no such release or releases shall commit
Bank thereafter to make any further or other such releases. Grantor
hereby grants Bank a security interest in the Insurance Collateral
Account to secure all obligations secured by the lien of this
Mortgage. If at any time the balance in the Insurance Collateral
Account shall be less than the required amount, whether as a result
of any withdrawal by Bank or otherwise, then, and in each such case,
Grantor will, forthwith on Bank's request, deposit such additional
amounts as are necessary to restore that balance to the required
amount.
12. COMPLIANCE WITH LAW. Grantor will, and cause all other Persons, if any,
operating or in possession of the Premises to, comply at all times and in
all respects with all laws (whether federal, state, or local and whether
statutory, administrative, judicial, or other) and with every lawful
governmental order (whether administrative or judicial) pertaining to the
occupancy, operation, and use of the Premises and, without limiting the
generality of the foregoing, will, and will cause each such Person to,
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(a) occupy, operate, and use the Premises in compliance with all
Environmental Laws and handle all Hazardous Materials in compliance
therewith,
(b) comply with and keep in full effect each approval, certification,
license, permit, or other authorization required by any
Environmental Law for the conduct of any activity upon or within the
Premises, and
(c) occupy, operate, and use the Premises in compliance with all zoning
ordinances.
13. POWER OF ATTORNEY. Grantor hereby irrevocably constitutes and appoints
Bank, through its employees and agents, with full power of substitution,
as Grantor's true and lawful attorney-in-fact, with full irrevocable power
and authority in the place of Grantor and in the name of Grantor or in
Bank's own name, for the purpose of carrying out the terms of this
Mortgage, to perform, at any time and from time to time, each agreement
contained in this Mortgage that is on Grantor's part to be complied with,
and to take any and all actions and to execute and deliver any and all
writings which may be necessary or desirable to give Bank the full benefit
of this Mortgage, in each case as Bank may from time to time deem
advisable, Grantor hereby agreeing that Bank shall owe no duty whatever to
Grantor to perform any such agreement, to take any such action, or to
execute or deliver any such writing or, having done so any one or more
times, to thereafter continue doing so. Without limiting the generality of
the foregoing, Grantor hereby irrevocably authorizes Bank, at any time and
from time to time, to (a) fill in any blank space contained in this
Mortgage or any other Related Writing, (b) to correct patent errors, to
complete and correct the description of the Collateral, and to complete
the date herein or therein, (c) to sign on Grantor's behalf and file, at
Grantor's expense and without Grantor's signature, such affidavits,
assignments, financing statements, indorsements of specific items of
Collateral, mortgages, powers of attorney, security agreements, and other
writings as Bank may from time to time deem advisable for the better
evidencing, perfection, protection, or validation of, or realization of
the benefits of, this Mortgage or the security interest granted pursuant
to this Mortgage, and (d) to seek such reductions in the assessments,
levies, taxes, and other charges on the Collateral or such thereof as Bank
shall from time to time deem advisable, and to prosecute all complaints
and appeals in connection therewith.
14. UNCONDITIONAL AND CONTINUING INTEREST. Grantor's obligations under this
Mortgage and granting of the mortgage lien and security interest to Bank
pursuant to this Mortgage are unconditional and effective immediately, and
(except for obligations surviving indefinitely pursuant to section 22)
those obligations and the lien and security interest so granted shall
continue in full effect until the Subject Debt shall have been paid in
full, regardless of the lapse of time, regardless of the fact that there
may be a time or times when no Subject Debt is outstanding, regardless of
any act, omission, or course of dealing whatever on Bank's part, and
regardless of any other event, condition, or other thing.
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15. PAYMENT IN FULL; DEFEASANCE. Payment in full of the Subject Debt shall be
deemed not to have occurred unless and until (a) Grantor shall have
limited the indebtedness secured by this Mortgage to zero by the giving
and recording of notice under applicable law, (b) all Commitments made to
Borrower prior to the limitation of the indebtedness secured by this
Mortgage shall have ceased to exist, and (c) all of the Subject Debt shall
have been paid to Bank in collected funds that are not subject to recovery
by any trustee in bankruptcy or any other Person. Upon payment in full of
the Subject Debt, this Mortgage (except for obligations surviving
indefinitely pursuant to section 22) shall be void.
16. BANK'S DUTIES LIMITED. Bank shall have no duty as to the collection or
protection of Collateral or any income therefrom, nor as to the
preservation of rights against other Persons, beyond the safe custody of
any Collateral in Bank's possession. Bank shall have no liability for its
delivery of any property to any Person or Persons who Bank determines in
good faith to be entitled to the same.
17. NO SETOFF. Grantor hereby waives any and all now existing or hereafter
arising rights to recoup or offset any obligation of Grantor under or in
connection with this Mortgage or any Related Writing against any claim or
right of Grantor against Bank.
18. NO HOMESTEAD, EXEMPTION, VALUATION, OR APPRAISAL RIGHTS; NO DOWER. Grantor
waives any homestead or exemption rights as against the obligations
secured by this Mortgage, and waives any and all rights Grantor may now or
hereafter have to insist upon any valuation or appraisal of the Collateral
or any part thereof. The undersigned spouse, if any, hereby releases and
forever quit-claims to Bank all right, title, and expectancy of dower in
the Collateral. If Grantor is more than one Person, then, at Bank's
discretion, those Persons, or either of them, may be deemed to be jointly
and severally liable for the payment and performance of Grantor's
obligations under this Mortgage.
19. INDEMNITY: ADMINISTRATION, ENFORCEMENT, AND TERMINATION; INTEREST. Grantor
will reimburse Bank, on Bank's demand from time to time, for any and all
fees, costs, and expenses (including, without limitation, the fees and
disbursements of legal counsel) incurred by Bank in administering this
Mortgage and in enforcing, exercising, or protecting its rights under this
Mortgage or under applicable law, or in attempting to do any of the
foregoing. Grantor agrees that if and when Bank's security interest shall
have terminated in accordance with the provisions of this Mortgage,
Grantor will, on Bank's demand from time to time, reimburse Bank for all
costs and expenses (including, without limitation, fees and disbursements
of legal counsel) incurred by Bank in releasing or terminating each
assignment, financing statement, mortgage, or other writing signed
pursuant to this Mortgage. If any amount owing under this Mortgage is not
paid when due, then, and in each such case, Grantor shall pay, on Bank's
demand, interest on that amount from the due date thereof until paid in
full at a fluctuating rate equal to four percent (4%) per annum plus the
Prime Rate. Grantor will, upon each request of Bank, furnish Bank with
such advances, assurances (including, without limitation, a surety bond
from a surety satisfactory to Bank)
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and deposits, in each case on terms satisfactory to Bank, in order to
ensure that Grantor will perform Grantor's obligations under this section
19 .
20. INDEMNITY: COMPLIANCE WITH LAW. Grantor will indemnify Bank, its
shareholders, directors, officers, employees, agents, and independent
contractors and their respective successors and assigns, from and against
any and all liabilities and any and all fees, costs, and expenses
(including, without limitation, the fees and disbursements of legal
counsel) arising out of or in connection with any breach of any
representation or warranty contained in subsection 4.4, or any failure to
perform or observe any agreement contained in section 12, or the existence
of any Hazardous Material upon or within, or the Release of any Hazardous
Material from, upon, or within, the Premises or any part thereof and, in
connection therewith, (a) the release of any lien upon all or any part of
the Premises, (b) any clean-up or other remediation under any
Environmental Law or otherwise, (c) any claim of any Person, (d) any
action or inaction by Grantor or any other Person occupying, operating, or
using the Premises or any part thereof, or by any of their respective
shareholders, directors, officers, employees, agents, or contractors, (e)
any loss of value in the Collateral, and (f) any failure of or defect in
title to the Collateral or any part thereof. Grantor will, upon each
request of Bank, furnish Bank with such advances, assurances (including,
without limitation, a surety bond from a surety satisfactory to Bank), and
deposits, in each case on terms satisfactory to Bank, in order to ensure
that Grantor will perform Grantor's obligations under this section 20.
21. WAIVERS; REMEDIES; APPLICATION OF PAYMENTS. Bank may from time to time in
its discretion grant waivers and consents in respect of this Mortgage or
any other Related Writing or assent to amendments thereof, but no such
waiver, consent, or amendment shall be binding upon Bank unless set forth
in a writing (which writing shall be narrowly construed) signed by Bank.
No course of dealing in respect of, nor any omission or delay in the
exercise of, any right, power, or privilege by Bank shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude
any further or other exercise thereof or of any other, as each such right,
power, or privilege may be exercised either independently or concurrently
with others and as often and in such order as Bank may deem expedient.
Each right, power, or privilege specified or referred to in this Mortgage
is in addition to and not in limitation of any other rights, powers, and
privileges that Bank may otherwise have or acquire by operation of law, by
other contract, or otherwise. Bank shall be entitled to equitable remedies
with respect to each breach or anticipatory repudiation of any provision
of this Mortgage, and Grantor hereby waives any defense which might be
asserted to bar any such equitable remedy. Without limiting the generality
of the foregoing, Bank, in any action to enforce any right arising under
or in connection with this Mortgage, shall be entitled to the appointment,
without notice to Grantor and regardless of whether Bank has an adequate
remedy at law, of a receiver of the Collateral or such thereof as Bank
shall deem advisable, with power to manage and operate that Collateral
during the pendency of that action and until the consummation of any sale
or other disposition of that Collateral, and with power to do such other
acts and
-11-
things to enable Bank to realize the benefits of this Mortgage. Bank shall
have the right to apply all cash Proceeds of any Collateral to the Subject
Debt with such allocation to the respective parts thereof and the
respective due dates thereof as Bank in its sole discretion may from time
to time deem advisable.
22. OTHER PROVISIONS. The provisions of this Mortgage shall bind Grantor and
Grantor's executors, heirs, successors, and assigns and benefit Bank and
its successors and assigns. Except for Grantor and Bank and their
respective successors and assigns, there are no intended beneficiaries of
this Mortgage, provided, that Bank shall have the right, in its
discretion, to designate, at any time and from time to time, one or more
of Bank's shareholders, directors, officers, employees, agents, and
independent contractors and their respective successors and assigns as
intended beneficiaries of section 20 . Each representation or warranty
made in or pursuant to this Mortgage shall survive the execution and
delivery of this Mortgage and each other Related Writing. The provisions
of sections 16 through 25, both inclusive, shall survive the payment in
full of the Subject Debt, the release of this Mortgage and the termination
of the security interest granted pursuant to this Mortgage. The several
captions to different sections and subsections of this Mortgage are
inserted for convenience only and shall be ignored in interpreting the
provisions thereof. Each reference to a section includes a reference to
all subsections thereof (i.e., those having the same character or
characters to the left of the decimal point), except where the context
clearly does not so permit. If any provision in this Mortgage shall be or
become illegal or unenforceable in any case, then that provision shall be
deemed modified in that case so as to be legal and enforceable to the
maximum extent permitted by law while most nearly preserving its original
intent, and in any case the illegality or unenforceability of that
provision shall affect neither that provision in any other case nor any
other provision. Interest for any given period shall accrue on the first
day thereof but not on the last day thereof (unless the last day is the
first day) and in each case shall be computed on the basis of a 360-day
year and the actual number of days in the period. In no event shall
interest accrue at a higher rate than the maximum rate, if any, permitted
by law. Bank shall have the right to furnish to its Affiliates, and to
such other Persons as Bank shall deem advisable for the conduct of its
business, information concerning the business, financial condition, and
property of Grantor, the amount of the Bank Debt of Grantor, and the
terms, conditions, and other provisions applicable to the respective parts
thereof. This Mortgage shall be governed by the law (excluding conflict of
laws rules) of the jurisdiction in which Bank's banking office is located.
23. INTEGRATION. This Mortgage and, to the extent consistent with this
Mortgage, the other Related Writings, set forth the entire agreement of
Grantor and Bank as to its subject matter, and may not be contradicted by
evidence of any agreement or statement unless made in a writing (which
writing shall be narrowly construed) signed by Bank contemporaneously with
or after the execution and delivery of this Mortgage.
-12-
24. NOTICES AND OTHER COMMUNICATIONS. Each notice, demand, or other
communication shall be deemed to have been given to Borrower whenever Bank
shall have mailed a writing to that effect by certified or registered mail
to Borrower at Borrower's mailing address (or any other address of which
Borrower shall have given Bank notice after the execution and delivery of
this Note) and said writing is received or refused; however, no other
method of giving actual notice to Grantor is hereby precluded. Each
communication to be given to Bank shall be in writing and shall be given
to Bank's Capital Banking Division at Bank's banking office (or any other
address of which Bank shall have given notice to Grantor after the
execution and delivery this Agreement). Grantor hereby assumes all risk
arising out of or in connection with each such communication given by
Grantor to Bank and each communication given or attempted by Borrower in
contravention of this section. Bank shall be entitled to rely on each
communication believed in good faith by Bank to be genuine.
25. JURISDICTION AND VENUS; WAIVER OF JURY TRIAL. Any action, claim,
counterclaim, crossclaim, proceeding, or suit, whether at law or in
equity, whether sounding in tort, contract, or otherwise at any time
arising under or in connection with this Mortgage or any other Related
Writing, the administration, enforcement, or negotiation of this Mortgage
or any other Related Writing, or the performance of any obligation in
respect of this Mortgage or any other Related Writing (each such action,
claim, counterclaim, crossclaim, proceeding, or suit, an "ACTION") may be
brought in any federal or state court located in the city in which Bank's
banking office is located. Grantor hereby unconditionally submits to the
jurisdiction of any such court with respect to each such Action and hereby
waives any objection Grantor may now or hereafter have to the venue of any
such Action brought in any such court. Grantor HEREBY, AND EACH HOLDER OF
THE Subject Debt OR ANY PART THEREOF, KNOWINGLY AND VOLUNTARILY WAIVES
JURY TRIAL IN RESPECT OF ANY Action.
Signed and Acknowledged
in the Presence of: GRANTOR:
/s/ XXXXX X. XXXXXXXX SAGI REALTY LTD.
--------------------------------
witness as to all signatures
By: Safe Auto Group, Inc., an
Ohio Corporation, a Member
XXXXXX X. XXXXXXXX
--------------------------------
witness name printed
By: /s/ Xxx Xxxxx
--------------------------------
Xxx Xxxxx, President
/s/ XXXXXXX X. XXXXXXX
--------------------------------
witness as to all signatures
By: Safe Auto Group Agency,
Inc., an Ohio Corporation,
XXXXXXX X. XXXXXXX a Member
--------------------------------
witness name printed
By: /s/ Xxx Xxxxx
--------------------------------
Xxx Xxxxx, President
-13-
STATE OF OHIO
COUNTY OF FRANKUN, SS:
BEFORE ME, a Notary Public in and for said County and State, personally appeared
Xxx Xxxxx, in his capacity as President of Safe Auto Group, Inc., in its
capacity as a Member of, SAGI Realty Ltd., who acknowledged that he did sign the
foregoing for and on behalf of that entity, with all necessary power and
authority to do so, and that the same is the free act and deed of that entity
and is the free act and deed of each such individual personally and in the
capacity hereinbefore set forth.
IN TESTIMONY, I set my hand and official seal this 1st day of APRIL,
1996.
/s/ XXXXXXX X. XXXXXXX
-----------------------
Notary Public
[STAMP] XXXXXXX X. XXXXXXX
ATTORNEY AT LAW
NOTARY PUBLIC, STATE OF OHIO
My commission has no expiration date.
Section 147.03 R.C
STATE OF OHIO
COUNTY OF FRANKUN, SS:
BEFORE ME, a Notary Public in and for said County and State, personally appeared
Xxx Xxxxx, in his capacity as President of Safe Auto Group Agency, Inc., in its
capacity as a Member of, SAGI Realty Ltd., who acknowledged that he did sign the
foregoing for and on behalf of that entity, with all necessary power and
authority to do so, and that the same is the free act and deed of that entity
and is the free act and deed of each such individual personally and in the
capacity hereinbefore set forth.
IN TESTIMONY, I set my hand and official seal this 1st day of APRIL,
1996.
/s/ XXXXXXX X. XXXXXXX
-----------------------
Notary Public
[STAMP] XXXXXXX X. XXXXXXX
ATTORNEY AT LAW
NOTARY PUBLIC, STATE OF OHIO
My commission has no expiration date.
Section 147.03 R.C
This Mortgage was prepared by:
National City Bank, Columbus
Law Department
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
-14-
EXHIBIT A
[MYERSSURVEYING LOGO]
0000 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxx 00000-0000
(000) 000-0000
Telefax 235-4559
February 12, 1996
2.783 ACRES
Situated in the State of Ohio, County of Franklin, City of
Whitehall, being all the tracts conveyed to Board of Education, Whitehall
City School District of record in Deed Book 2944, Page 482, Deed Book
2877, Page 541 and Deed Book 3024, Page 580 and part of the tracts
conveyed to said Board in Deed Book 575, Page 330 and Deed Book 707, Page
289, (Recorder's Office, Franklin County, Ohio), also being all of Lot 247
and part of Xxxx 000, 00, 00, 00, 00, xxx 00 xx Xxxxxx Brothers East Broad
Street Acre Allotment the same as numbered and delineated in Plat Book 8,
Page 18-A of record in said Recorder's Office, and being more particularly
described as follows:
Beginning at an Iron pin found at the southeast corner of said Lot
247 and in the west line of Robinwood Avenue (60 feet wide);
thence, along the south line of said Lot 247 ( the north line of Lot
248) and part of the south line of Lot 203 ( part of the north line of Lot
204) North 85 degrees 56 minutes 30 seconds West, 552.10 feet to an iron
pin found in the south line of said Lot 203 (passing an iron pin found at
the southwest corner of said Lot 247 at 405.6 feet and an iron pin found
at the southeast corner of the tract conveyed in said Deed Book 3024, Page
580 at 448.10 feet)
thence, across said Xxx 000, Xxxxx 00 degrees 15 minutes 30 seconds
West, 113.14 feet to an iron pin found in the north line of said Lot 203
(the south line of Lot 15), also being the northwest corner of the tract
conveyed in said Deed Book 3024, Page 580;
thence, along part of north line of said Lot 203 (part of the south
line of Lot 15), S 85 degrees 56 minutes 30 seconds East, 96.92 feet to an
iron pin found at the southwest corner of said Xxx 00 (xxxxxxxxx xxxxxx xx
xxxx Xxx 00 and passing the northeast corner of the tract conveyed in said
Deed Book 3024, Page 580 at 1.5 feet);
thence, along part of the west line of said Xxx 00 (xxxx xx xxx xxxx
xxxx xx xxxx Xxx 00), Xxxxx 00 degrees 03 minutes 00 seconds East, 110.17
feet to an iron pin set; continued...
EXHIBIT A
Page 2
2.783 ACRES
thence, across said Xxxx 00, 00, xxx 00, Xxxxx 00 degrees 32 minutes
31 seconds East, 310.58 feet to an iron pin set in the east line of said
Lot 18 (west line of Lot 9);
thence, along part of the east line said Lot 18 (part of the west
line of said Lot 19); South 04 degrees 03 minutes 00 seconds West, 72.68
feet to an iron pin found;
thence, across said Lots 19 and 20, South 85 degrees 56 minutes 30
seconds East, 202.80 feet to an iron pin found in the east line of said
Lot 20 and the west line of said Robinwood Avenue;
thence, along part of the east line of said Lot 20, the east line of
said Xxx 000, xxx xxx xxxx xxxx xx xxxx Xxxxxxxxx Xxxxxx, Xxxxx 00 degrees
03 minutes 00 seconds West, 200.00 feet to the place of beginning
CONTAINING 2.783 ACRES. Subject, however, to all legal highways, leases,
and easements of record and of records in the respective utility
offices.
The foregoing description was prepared from actual field
measurements in May 1995 by Xxxxx Surveying Company, Inc.. Iron pins set
are 30" X 1" O.D. with an orange plastic cap inscribed "P.S. 6579", unless
otherwise noted. Basis of bearings is the south line of Xxx 000 Xxxxxx
Xxxx. Xxxx Xxxxx Xxxxxx Acre Allotment as North 85 degrees 56 minutes 30
seconds West as shown in Deed Book 2944, Page 482.
XXXXX SURVEYING COMPANY, INC.
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, P.S. 7361 [STAMP]
JPM/adm (20040695)
EXHIBIT A
[MYERSSURVEYING LOGO]
0000 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxx 00000-0000
(000) 000-0000
Telefax 235-4559
February 12, 1996
2.096 ACRES
Situated in the state of Ohio, County of Franklin, City of
Whitehall, being part of the tracts conveyed to Board of Education,
Whitehall city School District of record in Deed Book 575, Page 330 and
Deed Book 707, Page 289, (Recorder's Office Franklin County, Ohio), also
being part of Xxxx 00, 00, xxx 00 xx Xxxxxx Brothers East Broad Street
Acre Allotment the same as numbered and delineated in Plat Book 8, page
18-A of record in said Recorder's Office, and being more particularly
described as follows:
Commencing at the northeast corner of Lot 20 of said Xxxxxx Bros.
East Broad Street Acre Allotment said point also being the intersection of
the south line of East Broad Street (66 feet wide) and the west line of
Robinwood Avenue (60 feet wide);
thence, along the south line of said East Broad Street, the north
lines of Lots 20 and 19 of said Xxxxxx Bros, East Broad Street Acre
Allotment, South 82 degrees 32 minutes 31 seconds West, 207.03 feet to a
solid iron pin found at the northeast corner of said Xxx 00 (xxxxxxxxx
xxxxxx xx xxxx Xxx 00) and THE TRUE POINT OF BEGINNING, of the herein
described parcel;
thence, along part of the east line of said Lot 18 (part of the west
line of said Xxx 00), Xxxxx 00 degrees 03 minutes 00 seconds West, 300.00
feet to an iron pin set;
thence, across said Xxxx 00, 00 xxx 00, Xxxxx 00 degrees 32 minutes
31 Seconds West, 310.58 feet to an iron pin set in the west line of said
Xxx 00 (xxxx xxxx xx Xxx 00);
thence, along part of the west line of said Xxx 00 (xxxx xx xxx xxxx
xxxx xx Xxx 00), Xxxxx 00 degrees 03 minutes 00 seconds East, 300.00 feet
to a point in a utility pole at the northwest corner of said Xxx 00
(xxxxxxxxx xxxxxx xx Xxx 00) and in the south line of said East Broad
Street (passing an iron pin found at 79.63 feet and an iron pin set at
299.00 feet);
continued ....
EXHIBIT A
PAGE
2.096 ACRES
thence, along the north lines of said Lots 16, 17, and 18, and the
south line of Xxxx Xxxxx Xxxxxx, Xxxxx 00 degrees 32 minutes 31 seconds
East, 310.58 feet to the place of beginning CONTAINING 2.096 ACRES
(passing an iron pin set at 1.0 foot). Subject, however, to all legal
highways, leases, and easements of record, and of records in the
respective utility offices.
The foregoing description was prepared from actual field
measurements in May 1995 by Xxxxx Surveying Company, Inc.. Iron pins set
are 30" X 1" O.D. with an orange plastic cap inscribed "P.S. 6579", unless
otherwise noted. Basis of bearings is the south line of Xxx 000 Xxxxxx
Xxxx. Xxxx Xxxxx Xxxxxx Acre Allotment as North 85 degrees 56 minutes 30
seconds West as shown in Deed Book 2944, page 482.
XXXXX SURVEYING COMPANY, INC.
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, P.S. 7361 [STAMP]
JPM/adm (20040695)
