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EXHIBIT 10.1
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LOAN AGREEMENT
BY AND BETWEEN
ADVANCED LIGHTING TECHNOLOGIES, INC.
AND
XXXXX X. XXXXXXX
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$9,000,000
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DATED
AS OF
OCTOBER 8, 1998
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TABLE OF CONTENTS
(The Table of Contents is not a part of the Loan Agreement
and is included only for convenience of reference.)
ARTICLE I
DEFINITIONS..........................................................................2
Section 1.1. USE OF DEFINED TERMS...............................................2
Section 1.2. DEFINITIONS........................................................2
ARTICLE II
REPRESENTATIONS......................................................................3
Section 2.1. REPRESENTATIONS WITH RESPECT TO BORROWER...........................3
ARTICLE III
LOAN; CONDITIONS TO CLOSING..........................................................5
Section 3.1. LOAN AND REPAYMENT.................................................5
Section 3.2. Intentionally Left Blank...........................................6
Section 3.3. INSPECTIONS........................................................6
Section 3.4. BORROWER REQUIRED TO PAY MARGIN CALLS..............................6
Section 3.5. Intentionally Left Blank...........................................6
Section 3.6. CONDITIONS TO DISBURSEMENT.........................................6
Section 3.7. Intentionally Left Blank...........................................7
Section 3.8. DISBURSEMENT OF LOAN...............................................7
Section 3.9. PAYMENT OF COSTS; INDEMNIFICATION..................................7
ARTICLE IV
ADDITIONAL COVENANTS AND AGREEMENTS..................................................7
Section 4.1. EMPLOYMENT. .......................................................8
Section 4.2. AFFIRMATIVE COVENANTS OF BORROWER..................................8
Section 4.3. ENVIRONMENTAL MATTERS..............................................9
Section 4.4. NEGATIVE COVENANTS OF BORROWER.....................................9
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES; TERMINATION..........................................9
Section 5.1. EVENTS OF DEFAULT..................................................9
Section 5.2. REMEDIES ON DEFAULT...............................................11
Section 5.3. NO REMEDY EXCLUSIVE...............................................11
Section 5.4. AGREEMENT TO PAY ATTORNEYS' FEES AND EXPENSES.....................11
Section 5.5. NO WAIVER.........................................................12
ARTICLE VI
MISCELLANEOUS.......................................................................12
Section 6.1. TERM OF AGREEMENT.................................................12
Section 6.2. NOTICES...........................................................12
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Section 6.3. EXTENT OF COVENANTS OF LENDER; NO PERSONAL LIABILITY..............12
Section 6.4. BINDING EFFECT....................................................12
Section 6.5. AMENDMENTS AND SUPPLEMENTS........................................12
Section 6.6. EXECUTION COUNTERPARTS............................................13
Section 6.7. SEVERABILITY......................................................13
Section 6.8. CAPTIONS..........................................................13
Section 6.9. GOVERNING LAW.....................................................13
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LOAN AGREEMENT
THIS LOAN AGREEMENT (this Agreement") is made and entered into as of
October 8, 1998, by and between ADVANCED LIGHTING TECHNOLOGIES, INC., an Ohio
corporation with its offices at 0000 Xxxx Xxxxxx Xxxx, Xxxxx Xxx, Xxxxxxxxx,
Xxxx 00000 ("Lender") and XXXXX X. XXXXXXX, an individual residing at 0000 Xxxx
Xxxx, Xxxxxxx Xxxxx, Xxxx 00000 ("Borrower").
BACKGROUND
A. Borrower is the Chief Executive Officer and Chairman of Lender.
B. Borrower owns approximately ten percent (10%) of Lender's issued and
outstanding capital stock (the "Margin Shares").
C. The Margin Shares are pledged as collateral to Prudential Securities
Incorporated (the "Margin Lender") to secure a loan from the Margin Lender which
as of October 6, 1998 is in the amount of Fifteen Million Forty Nine Thousand
One Hundred Ninety Five Dollars ($15,049,195) (the "Margin Loan").
D. Pursuant to Borrower's agreement with the Margin Lender, at October
6, 1998 the Margin Loan was under collateralized by Eight Million Three Hundred
Twenty Seven Thousand Three Hundred Thirteen Dollars ($8,327,313) (the "Margin
Deficit").
E. The Margin Loan must be reduced by the Margin Deficit in order to
prevent the Margin Lender from liquidating the Margin Shares.
F. Upon reports from its advisors and after discussion, Lender's
disinterested directors have determined that it is in the best interests of
Lender to prevent the liquidation of the Margin Shares in order to avoid the
adverse effect on Lender's stock price that is likely to result from the sale of
the Margin Shares in the market, and to avoid causing Borrower serious financial
stress which would adversely affect the operation and management of Lender.
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the agreements made
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lender and Borrower agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. USE OF DEFINED TERMS. In addition to the words and terms
defined elsewhere in this Agreement or by reference to the Security Documents or
other instruments, the words and terms set forth in Section 1.2 shall have the
meanings therein set forth unless the context or use expressly indicates
different meaning or intent. Such definitions shall be equally applicable to
both the singular and plural forms, and the masculine, feminine and neuter forms
of any of the words and terms therein defined.
SECTION 1.2. DEFINITIONS. As used herein:
"Affiliate" and "Associate" means those persons that are affiliates and
associates as defined in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934 as presently in effect.
"Agreement" means this Loan Agreement, as from time to time amended or
supplemented.
"Closing Date" means the date of execution and delivery of the Loan
Documents.
"Collateral" means the property identified in EXHIBIT 1.2-A, but
specifically excludes the Margin Shares.
"Event of Default" means any of the events described as an event of
default in Section 5.1 hereof.
"Loan" means the loan by Lender to Borrower in the total sum of the
Loan Amount, to be disbursed pursuant to Section 3.8 hereof.
"Loan Amount" means Nine Million Dollars ($9,000,000).
"Loan Documents" means this Agreement and all other agreements,
certificates, instruments and other documents required by Lender to evidence or
secure, or delivered in connection with the consummation of, the Loan, as such
documents may be amended or supplemented from time to time.
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"Mortgage" means each Mortgage on the Realty (defined herein) dated as
of even date herewith from Borrower to Lender, as amended or supplemented from
time to time.
"Note" means the Secured Promissory Note, as executed in the form
attached hereto as EXHIBIT 1.2-B, evidencing the obligation of Borrower to repay
the Loan and any replacement or substitute instrument.
"Note Payment" means all required payments under the Note.
"Notice Address" means as to Lender and Borrower, the addresses first
set forth at the beginning hereof, or such additional or different address,
notice of which is given under Section 6.2 hereof.
"Person" means an individual, a partnership, a corporation, a business
trust, a joint stock company, a trust, an unincorporated association, a joint
venture, a governmental authority or any other entity of whatever nature.
"Security Documents" means, collectively, the documents identified in
EXHIBIT 1.2-C.
"Title Company" means such title companies as utilized by Lender in
connection herewith.
"UCC Financing Statements" means all financing statements filed to
perfect the security interests created under the Security Documents.
ARTICLE II
REPRESENTATIONS
SECTION 2.1. REPRESENTATIONS WITH RESPECT TO BORROWER. Borrower hereby
represents and warrants that:
(a) Borrower is an individual residing at the Notice Address.
(b) Borrower has full power and authority to execute and deliver the
Loan Documents and to carry out the transactions contemplated thereunder. Such
execution, delivery and performance do not, and will not, violate any provision
of law applicable to Borrower, and do not, and will not, conflict with or result
in a default under any agreement or instrument to which Borrower is a party or
by which Borrower or any of his property or assets is or may be bound. The Loan
Documents have been duly executed and delivered by Borrower, and all necessary
actions have been taken to constitute the Loan Documents legal as valid and
binding obligations of Borrower in accordance with their respective terms.
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(c) The Loan is required to prevent forfeiture of the Margin Loan, and
the Margin Lender's execution on the Margin Shares.
(d) There are no actions, suits or proceedings pending or threatened
against or affecting Borrower or any of his property or assets which, if
adversely determined, would individually or in the aggregate materially impair
the ability of Borrower to perform any of his obligations under the Loan or
would adversely affect the financial condition of Borrower.
(e) Except for the Margin Loan, Borrower is not in default under any
agreement with any Person, or in the payment of any indebtedness for borrowed
money or under any agreement or instrument evidencing any such indebtedness, and
no event has occurred which, by notice, the passage of time or otherwise, would
constitute any such default.
(f) Except as set forth in SCHEDULE 2.2(f), Borrower has made no
contract or arrangement of any kind, other than the Loan Documents, which has
given rise to, or the performance of which by the other party thereto would give
rise to, a lien or claim of lien on the Collateral.
(g) No representation or warranty of Borrower contained in any of the
Loan Documents, and no statement contained in any certificate, schedule, list,
financial statement or other instrument furnished by or on behalf of Borrower to
Lender contains any untrue statement of a material fact, or omits to state a
material fact necessary to make the statements contained herein or therein not
misleading.
(h) All proceeds of the Loan shall be used for the payment of the
Margin Deficit to the Margin Lender. No part of any such proceeds shall be paid
to or retained by Borrower.
(i) Except as disclosed in SCHEDULE 2.2(j), Borrower has good and
marketable title in fee simple to the Collateral, subject in all cases to no
lien, charge, easement, condition, restriction or encumbrance except as created
by the Loan Documents.
(j) To the knowledge of Borrower:
(A) the real property included in the Collateral (the
"Realty") does not currently contain and is not presently contaminated by any
hazardous substance, hazardous wastes, toxic substance or other material
substance or waste in violation of any environmental laws;
(B) (i) There are no visible signs of releases, spills,
discharges, leaks or disposal (collectively referred to as "Releases") of
hazardous substances at, upon, under or within the Realty; and (ii) there are no
underground storage tanks or polychlorinated biphenyls on the Realty;
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(C) the Realty is not currently threatened by any activity
involving directly, or indirectly, the use, generation, treatment, storage or
disposal of any hazardous substance, hazardous wastes, toxic substance or other
material substance or waste, the exposure to which is prohibited, limited or
otherwise regulated by any environmental laws; and
(D) no "clean-up" of the Realty has occurred pursuant to any
applicable federal or state environmental laws.
(k) After giving effect to the transactions contemplated by the Loan
Documents, Borrower will be solvent, and able to pay his debts as they mature.
(l) EXHIBIT 2.2-l sets forth all amounts currently owed by Borrower on
the Margin Loan, the current amount of the Margin Deficit, and the collateral
securing the Margin Loan, including the Margin Shares. Borrower has delivered to
Lender true and complete copies of all agreements, documents and other
instruments which relate in any way to the Margin Loan.
(m) Except as set forth in EXHIBIT 2.2-m, Borrower holds his property
in his own name, not in the name of any trusts, Associates or Affiliates.
All representations and warranties contained in, or made in connection with,
this Agreement and the other Loan Documents shall survive the Closing Date and
the disbursement of the Loan and shall not be limited or otherwise affected by
any and all inspections, investigations, reviews or other inquiries (including,
without limitation, any investigation or review contemplated in Section 3.3)
made or other actions taken by Lender or any of its agents, representatives and
designees or any other person assisting any of the foregoing or acting for or on
behalf of Lender in connection with the Loan Documents or the consummation of
the Loan.
ARTICLE III
LOAN; CONDITIONS TO CLOSING
SECTION 3.1. LOAN AND REPAYMENT. On the terms and conditions of this
Agreement, Lender shall lend to Borrower the Loan Amount for payment on the
Margin Loan. The Loan shall be evidenced by this Agreement and the Note and
secured by the Security Documents and other Loan Documents, as applicable. Those
instruments shall be executed and delivered by Borrower to Lender concurrently
(or after in Lender's discretion) with the execution and delivery of this
Agreement and the delivery of all other documents and the satisfaction of all
other closing conditions required by this Agreement. Arrangements satisfactory
to Lender for the filing and recording of the Security Documents and other Loan
Documents evidencing or securing the Loan, which are to be recorded, shall be
made, or such instruments may be filed for record prior to or after the
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disbursement of the Loan, if deemed appropriate by Lender. The Loan shall be
disbursed on the Closing Date pursuant to Section 3.8 hereof upon the
satisfaction of the conditions set forth in Section 3.6 hereof.
The terms of repayment of the Loan shall be as set forth in the Note,
and Borrower shall make all payments required to be made under the Note as and
when due.
SECTION 3.2. INTENTIONALLY LEFT BLANK.
SECTION 3.3. INSPECTIONS. In connection with the consummation of the
Loan Lender may inspect or otherwise reviewing the Collateral or Borrower's
assets. No such inspection and review shall impose any responsibility or
liability of any nature upon Lender, its agents, representatives or designees
or, without limitation, carry any warranty or representation as to the
Collateral.
SECTION 3.4. BORROWER REQUIRED TO PAY MARGIN CALLS. In the event that
the proceeds of the Loan are not sufficient to pay the Margin Deficit, or the
Margin Loan again becomes under collateralized, Borrower will, irrespective of
the cause of such deficiency, pay all margin calls on the Margin Loan in order
to prevent Margin Lender from executing on the Margin Shares.
SECTION 3.5. INTENTIONALLY LEFT BLANK.
SECTION 3.6. CONDITIONS TO DISBURSEMENT. The disbursement of the Loan
shall be made on the Closing Date, provided Lender shall have received the
following on or before the Closing Date (Lender may disburse the Loan prior to
receiving any of these items or the fulfillment of any condition hereof, or
prior to the attachment of any schedule or exhibit hereto, and in such event
Borrower shall promptly provide the required item, fulfill the condition and
deliver the required schedules and exhibits after the disbursement of the Loan):
(a) the duly executed Note;
(b) the duly executed Security Documents;
(c) duly executed financing statements to evidence and perfect the
security interests created by the Security Documents and delivery of all
Collateral which is required to be possessed by Lender to perfect its security
interest therein;
(d) a paid American Land Title Association loan policy of title
insurance issued by the Title Company, in the Loan Amount, insuring Lender's
interest created by the Security Documents at the level of priority therein
stated to be a valid lien on the Realty (including all appurtenances thereto)
free and clear of all defects and encumbrances
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except as created by the Loan Documents, or as disclosed in such policy, with
such endorsements as Lender may require, which policy shall contain:
(i) no survey exception not theretofore approved by Lender;
(ii) affirmative insurance coverage regarding access,
compliance with respect to restrictive covenants and any other matters to which
Lender may have objection or require affirmative insurance coverage;
(e) If the disbursement date differs from the Closing date, a
certificate of Borrower that his (i) representations and warranties made in the
Loan Documents remain true, accurate and complete as of the disbursement date,
and (ii) no default or event which, by notice, the passage of time or otherwise,
would constitute a default exists under any of the Loan Documents;
(f) an opinion of Borrower's counsel, in form satisfactory to Lender's
counsel;
(g) such other certifications, documents or opinions as Lender may
reasonably request; and
(h) execution of the amendment to employment agreement provided for in
Section 4.1.
SECTION 3.7. INTENTIONALLY LEFT BLANK.
SECTION 3.8. DISBURSEMENT OF LOAN. Lender shall disburse the Loan by
delivering funds in the Loan Amount to the Margin Lender on the Closing Date for
application to the Margin Loan on Borrower's account.
SECTION 3.9. PAYMENT OF COSTS; INDEMNIFICATION. Borrower shall pay all
costs incident to the Loan, including recording and title fees, title
examination and insurance fees, escrow fees, all costs and expenses incurred by
Lender and the fees and expenses of the counsel, accountants and other
consultants, assisting in this matter at the request of Lender or its
representatives. Borrower shall defend, indemnify and hold Lender and its
directors, officers, and its and their attorneys harmless against any and all
loss, cost, expense, claims, damages or actions arising out of or connected with
the Loan, or execution and delivery of this Agreement or any other Loan
Documents and the preparation of documents relating to the disbursement of the
Loan. The provisions of this Section shall survive the termination of this
Agreement.
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ARTICLE IV
ADDITIONAL COVENANTS AND AGREEMENTS
SECTION 4.1. EMPLOYMENT. Borrower and Lender hereby agree that the term
of Borrower's Employment Agreement with Lender will be extended to December 31,
2003, and such agreement will be amended by separate agreement.
SECTION 4.2. AFFIRMATIVE COVENANTS OF BORROWER. Throughout the term of
this Agreement, Borrower shall:
(a) Taxes and Assessments. Pay and discharge promptly, when due and
payable, all taxes, assessments and governmental charges or levies imposed upon
him, his income or any of his property, or upon any part thereof, as well as all
claims of any kind which, if unpaid, might by law become a lien or charge upon
any of his property, other than taxes, assessments and claims being contested in
good faith by appropriate proceedings.
(b) Maintain Property. Maintain and keep the Collateral in good repair,
working order and condition, ordinary wear and tear excepted, and from time to
time make all repairs, renewals and replacements which are necessary and proper
in furtherance thereof.
(c) Maintain Insurance. Keep all of Borrower's insurable property
insured against loss or damage by fire and other risks, maintain public
liability insurance against claims for personal injury, death or property damage
suffered by others upon, in or about any and all premises owned or occupied by
Borrower; and maintain all insurance for which provision has been made in this
subsection (c) shall be maintained against such risks and in at least such
amounts as such insurance as required in the Security Documents, and all
insurance herein provided for shall be effected and maintained in force under a
policy or policies issued by insurers of recognized responsibility. Lender shall
be named as an additional insured and loss payee on all such insurance, and
certificates of insurance with such designations shall be provided to Lender and
shall provide that no insurance shall be canceled or reduced without providing
Lender with at least thirty (30) days prior notice.
(d) Furnish Information. Furnish to Lender such information on Borrower
and his assets and liabilities as Lender from time to time requests.
(e) Deliver Notice. Forthwith upon learning of any of the following,
deliver written notice thereof to Lender, describing the same and the steps
being taken by Borrower with respect thereto:
(i) the occurrence of an Event of Default or an event or
circumstance which would constitute an Event of Default, but for the requirement
that notice be given or time elapse or both, or
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(ii) any action, suit or proceeding by or against Borrower at
law or in equity, or before any governmental instrumentality or agency,
instituted or threatened which, if adversely determined, would materially impair
the right or ability of Borrower to perform his obligations hereunder.
SECTION 4.3. ENVIRONMENTAL MATTERS. Throughout the term of this
Agreement, Borrower agrees that Borrower shall ensure that the Realty remains in
compliance with all environmental laws and will not place or permit to be placed
any hazardous or toxic substances or hazardous waste on the Realty.
SECTION 4.4. NEGATIVE COVENANTS OF BORROWER. Throughout the term of
this Agreement, Borrower agrees that he shall not:
(a) sell, transfer or otherwise dispose of any of the Collateral
without Lender's written consent;
(b) enter into any agreement containing any provision which would be
violated or breached by the performance of its obligations hereunder or under
any instrument or document delivered or to be delivered by it hereunder or in
connection herewith;
(c) pledge, assign, transfer, hypothecate or in any manner encumber any
of the Collateral; or
(d) pledge, assign, transfer, hypothecate or in any manner encumber any
of the Margin Stock, other than under the Margin Loan or with Lender's written
consent to satisfy the Loan.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES; TERMINATION
SECTION 5.1. EVENTS OF DEFAULT. Each of the following shall be an
"Event of Default":
(a) Borrower shall fail to pay any amount payable under the Note or
pursuant to this Agreement, the Security Documents or any other Loan Document on
the date on which such payment is due and payable;
(b) Borrower shall fail to observe and perform any agreement, term or
condition contained in this Agreement, the Security Documents or any other Loan
Document and such failure continues uncured for a period of thirty (30) days
after written notice of such default, or for such longer period to which Lender
may agree in writing;
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(c) Any representation or warranty made by Borrower herein or in any
other Loan Documents, or in connection herewith or therewith shall prove to have
been incorrect in any material respect when made;
(d) Borrower shall fail to pay any of his indebtedness for borrowed
money, or any interest or premium thereon, when due (whether by scheduled
maturity, required prepayment, by acceleration, on demand or otherwise) and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such indebtedness; or any other default
under any agreement or instrument relating to any such indebtedness, or any
other event, shall occur and shall continue after the applicable grace period,
if any, specified in such agreement or instrument, if the effect of such default
or event is to accelerate, or to permit the acceleration of, the maturity of
such indebtedness; or any such indebtedness shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof;
(e) Borrower commences a voluntary case concerning it under any title
of the United States Code entitled "Bankruptcy" as now or hereafter in effect,
or any successor thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against Borrower under the Bankruptcy Code, and relief is ordered
against Borrower or the petition, though controverted, is not dismissed within
forty-five (45) days after the commencement of the case; or Borrower is not
generally paying its debts as such debts become due; or a custodian (as defined
in the Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of Borrower; or Borrower commences any other
proceeding under any reorganization, arrangement, readjustment of debt, relief
of debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction, whether now or hereafter in effect, or there is commenced against
Borrower any such proceeding which remains undismissed for a period of sixty
(60) days; or Borrower is adjudicated insolvent or bankrupt; or Borrower fails
to controvert in a timely manner any such case under the Bankruptcy Code or any
such proceeding or any order of relief or other order approving any such case or
proceeding or in the appointment of any custodian or the like of or for it or
any substantial part of its property or suffers any such appointment to continue
undischarged or unstayed for a period of forty-five (45) days; or Borrower makes
a general assignment for the benefit of creditors; or any action is taken by
Borrower for the purpose of effecting any of the foregoing; or a receiver or
trustee or any other officer or representative of the court or of creditors, or
any court, governmental officer or agency, shall, under color of legal
authority, take and hold possession of any substantial part of the property or
assets of Borrower for a period in excess of forty-five days;
(f) A judgment or order for the payment of money in excess of Ten
Thousand Dollars ($10,000.00) shall be rendered against Borrower and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of thirty (30) consecutive
days during which a stay of
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enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) Borrower transfers any of the Margin Stock without Lender's written
consent.
SECTION 5.2. REMEDIES ON DEFAULT. Whenever an Event of Default shall
have occurred and be subsisting, any one or more of the following remedial steps
may be taken:
(a) If the Loan has not been disbursed, Lender may terminate any and
all of its obligations under this Agreement;
(b) Lender may declare all payments under the Note to be immediately
due and payable, whereupon the same shall become immediately due and payable;
(c) Lender may posses the Collateral; and
(d) Lender may pursue all or any combination of the remedies specified
in this Agreement, the Security Documents, the Note or any other Loan Document,
or which now or hereafter exist in statute, at law or in equity, to collect all
amounts then due and thereafter to become due under this Agreement, the Security
Documents, the Note or any other Loan Document, or to enforce the performance
and observance of any other obligation or agreement of Borrower under the Loan
Documents.
SECTION 5.3. NO REMEDY EXCLUSIVE. No remedy conferred upon or reserved
to Lender by this Agreement is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumulative and shall
be in addition to every other remedy given under this Agreement, each other Loan
Document, or now or hereafter existing at law, in equity or by statute. No delay
or omission to exercise any right or power accruing upon any default shall
impair any such right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as often as may
be deemed expedient. In order to entitle Lender to exercise any remedy reserved
to it in this Article, it shall not be necessary to give any notice, other than
such notice as may be expressly provided for herein or required by law.
SECTION 5.4. AGREEMENT TO PAY ATTORNEYS' FEES AND EXPENSES. If an Event
of Default shall occur and Lender should incur expenses, including attorneys'
fees, in connection with the enforcement of this Agreement or any other Loan
Document, or the collection of sums due thereunder, Borrower shall reimburse
Lender for the expenses so incurred upon demand. If any such expenses are not so
reimbursed, the amount thereof, together with interest thereon from the date of
demand for payment at the Interest Rate (as defined in the Security Documents),
shall constitute indebtedness secured by the Security Documents, and in any
action brought to collect such indebtedness or to foreclose or
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enforce the Security Documents, Lender shall be entitled to seek the recovery of
such expenses in such action.
SECTION 5.5. NO WAIVER. No failure by Lender to insist upon the strict
performance by Borrower of any provision hereof shall constitute a waiver of his
right to strict performance, and no express waiver shall be deemed to apply to
any other existing or subsequent right to enforce the failure by Borrower to
observe or comply with any provision hereof.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. TERM OF AGREEMENT. This Agreement shall be and remain in
full force and effect from the date of its delivery until (a) the termination of
this Agreement pursuant to the terms hereof or (b) such time as the Loan shall
have been fully and indefeasably repaid and all other sums payable by Borrower
under this Agreement, the Security Documents, the Note and the other Loan
Documents shall have been paid.
SECTION 6.2. NOTICES. All notices, certificates, requests or other
communications hereunder shall be in writing and shall be deemed to be
sufficiently given when mailed by registered or certified mail, postage prepaid,
and addressed to the appropriate Notice Address. Borrower or Lender may, by
notice given hereunder, designate any further or different addresses to which
subsequent notices, certificates, requests or other communications shall be
sent.
SECTION 6.3. EXTENT OF COVENANTS OF LENDER; NO PERSONAL LIABILITY. All
covenants, obligations and agreements of Lender contained in this Agreement
shall be effective only to the extent authorized and permitted by applicable
law. No such covenant, obligation or agreement shall be deemed to be a covenant,
obligation or agreement of any director, officer or agent of Lender, and no such
Person shall be personally liable or in any way personally obligated by reason
hereof.
SECTION 6.4. BINDING EFFECT. This Agreement shall inure to the benefit
of, and shall be binding in accordance with its terms upon, Lender and its
successors and assigns, and on Borrower and his heirs, estate, executors,
administrators and personal representatives.
SECTION 6.5. AMENDMENTS AND SUPPLEMENTS. This Agreement may not be
amended or supplemented except by an instrument in writing executed by Lender
and Borrower.
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SECTION 6.6. EXECUTION COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be regarded as an original, and
all of which shall constitute but one and the same instrument.
SECTION 6.7. SEVERABILITY. If any provision of this Agreement, or any
covenant, obligation or agreement contained herein is determined by a court to
be invalid or unenforceable, such determination shall not affect any other
provision, covenant, obligation or agreement, each of which shall be construed
and enforced as if such invalid or unenforceable portion were not contained
herein. Such invalidity or unenforceability shall not affect any valid and
enforceable application thereof, and each such provision, covenant, obligation
or agreement, shall be deemed to be effective, operative, made, entered into or
taken in the manner and to the full extent permitted by law.
SECTION 6.8. CAPTIONS. The captions and headings in this Agreement
shall be solely for convenience of reference and shall in no way define, limit
or describe the scope or intent of any provisions or Sections of this Agreement.
SECTION 6.9. GOVERNING LAW. This Agreement shall be deemed to be a
contract made under the laws of the state of Ohio and for all purposes shall be
governed by and construed in accordance with the laws of Ohio without regard to
conflict of laws principals.
IN WITNESS WHEREOF, this Agreement has been executed and delivered all
as of the date hereinbefore written.
LENDER:
ADVANCED LIGHTING TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxx
--------------------------------
Its: Director Representative
-------------------------------
BORROWER:
/s/ Xxxxx X. Xxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxx
13
17
EXHIBIT 1.2-A-COLLATERAL
LOAN AGREEMENT
XXXXX X. XXXXXXX / ADVANCED LIGHTING TECHNOLOGIES, INC.
I. All personal property now owned or hereinafter acquired
including, but not limited to, stocks; bonds and other
securities; investment property; contract rights; furniture;
furnishings; chattel papers; deposit accounts; documents;
choses in action; money; instruments; goods (whether covered
by a certificate of title or not); general intangibles;
foreign currency; letters of credit and advices of credit; and
II. A 1997 Regal pleasure boat, Registration Number FL1982KB, Hull
Identification Number RGMPA012G697 and all engines, fixtures
and chattels now or hereafter attached thereto or found
thereon; and
III. With respect to all of the foregoing, all (i) privileges and
appurtenances thereto, (ii) renewals or replacement thereof or
articles in substitution therefor, (iii) proceeds of any of
the foregoing or from any insurance payable with respect
thereto (from whatever source), or payments from any taking
under power of eminent domain of all or any portion thereof,
and (iv) all rents, issues, profits or other amounts due to
Debtor in respect thereof; and
IV. Notwithstanding the foregoing, the Collateral shall not
include any stock, bonds, or other securities held by Debtor
in Advanced Lighting Technologies, Inc. nor any membership
interest in Xxxxxxx, Ltd.
18
EXHIBIT 1.2-B - SECURED PROMISSORY NOTE
LOAN AGREEMENT
XXXXX X. XXXXXXX / ADVANCED LIGHTING TECHNOLOGIES, INC.
[DOCUMENT ATTACHED HERETO]
19
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND SUCH LAWS AND
THE RESPECTIVE RULES AND REGULATIONS THEREUNDER.
SECURED PROMISSORY NOTE
$9,000,000 October 8, 1998
FOR VALUE RECEIVED, XXXXX X. XXXXXXX, an individual residing at 0000
Xxxx Xxxx, Xxxxxxx Xxxxx, Xxxx 00000 ("Maker") promises to pay to the order of
ADVANCED LIGHTING TECHNOLOGIES, INC., an Ohio corporation with its offices at
0000 Xxxx Xxxxxx Xxxx, Xxxxx Xxx, Xxxxxxxxx, Xxxx 00000 ("Payee") the principal
sum of Nine Million Dollars ($9,000,000), plus interest (calculated on the basis
of a 365 day year) on the principal outstanding from time to time at eight
percent (8%) per annum. Maker acknowledges and agrees that Payee has paid the
proceeds of the Loan directly to Prudential Securities Incorporated pursuant to
the wire instructions attached hereto as EXHIBIT A, on Maker's behalf, in
payment of amounts due under the Margin Loan (as defined in the Loan Agreement
of even date herewith by and between Maker and Payee (the "Loan Agreement"))
(the Loan Agreement is by this reference incorporated herein; any initially
capitalized term used but not herein defined shall have the meaning ascribed to
it in the Loan Agreement).
1. MATURITY. All unpaid principal hereunder and all accrued but unpaid
interest thereon shall be due in full at October 6, 1999.
2. ORDER OF PAYMENT; PREPAYMENT. Each payment (and any prepayments) by
Maker to Payee hereunder shall be applied first to the costs of collection, if
any, second to accrued but unpaid interest and third to principal, regardless of
whether Maker designates a payment otherwise. Maker may, at any time he is not
in Default, prepay this Note, in whole or in part, from time to time, without
premium or penalty.
3. PAYMENTS. Payments hereunder shall be made at Payee's address set
forth above, or at such other address as Payee may direct.
4. SECURITY DOCUMENTS. This Note is secured by the Collateral pursuant
to the the terms and conditions set forth in the Security Documents and the
other Loan
$9,000,000 Secured Promissory Note
Maker - Xxxxx X. Xxxxxxx
Page 1 of 3
20
Documents, and all of the terms and provisions thereof are by this
reference incorporated herein.
5. DEFAULT. Upon: (A) any Event of Default (as defined in the Loan
Agreement); (including the failure to pay any amount when due) after any
applicable cure period has passed; or (B) Maker no longer being employed by
Payee for any reason (any such event in (A) or (B) being a "Default"), the
unpaid principal of the Loan and the accrued but unpaid interest thereon, shall
automatically become immediately due and payable.
6. DEFAULT INTEREST. Any and all amounts owed by Maker to Payee under
the terms of this Note which are not paid when due (whether by reason of
acceleration or otherwise) shall bear interest at eighteen percent (18%) per
annum or, if less, the highest legal rate, until all of such sums are paid in
full.
7. SETOFF. Maker agrees that, in addition to, and without limitation
of, any right of setoff or counterclaim which Payee may otherwise have against
Maker, upon any Default Payee shall be entitled, at its option, to setoff
amounts owed by it to Maker or amounts held by it for the account of Maker,
against any principal, interest or other amounts owing from Maker to Payee
hereunder or under the other Loan Documents,
8. MAKER'S WAIVER. Maker waives demand, presentment for payment, notice
of dishonor, protest, notice of protest, diligence in collection, bringing suit
in connection with the delivery, acceptance, performance, default or enforcement
of this Note and any homestead exemption. Maker agrees that Payee may extend the
time for payment, accept partial payments, or exchange or release any Collateral
securing the Loan, without discharging or releasing Maker.
9. COLLECTION COSTS. Upon any Default, if this Note is placed by Payee
in the hands of any attorney for collection, through legal proceedings or
otherwise, Maker agrees to pay reasonable attorneys' fees to the holder hereof
together with reasonable costs and expenses of collection, including, without
limitation, any such attorneys' fees, costs and expenses relating to any
proceedings with respect to the bankruptcy, insolvency, or readjustment of debt
of Maker. All such amounts shall be added to principal as they are incurred.
10. AMENDMENT; WAIVER. This Note may not be amended or modified in any
manner except by written instrument executed by Payee and Maker. No delay or
omission on the part of Payee in exercising any right hereunder shall operate as
a waiver of such right or of any such other right, nor shall any such delay or
omission be deemed to bar any right hereunder on any future occasion.
$9,000,000 Secured Promissory Note
Maker - Xxxxx X. Xxxxxxx
Page 2 of 3
21
11. SUCCESSORS. Any reference herein to Payee shall be a reference to
Payee and any subsequent holder of this Note. This Note shall be binding upon
Maker, his heirs, estate, executors, administrators and personal
representatives, and shall benefit Payee and its successors and assigns, and any
subsequent holder of this Note.
12. GENERAL. This Note shall be governed by, and construed and enforced
in accordance with, the laws of the State of Ohio, without regard to any
conflicts or choice of law rules, and shall be construed and interpreted without
any presumption or construction against the party causing this Note to be
drafted.
IN WITNESS WHEREOF, Maker has duly executed this Note on the date first
above written.
MAKER
--------------------------
Xxxxx X. Xxxxxxx
$9,000,000 Secured Promissory Note
Maker - Xxxxx X. Xxxxxxx
Page 3 of 3
22
EXHIBIT A
XXXXXXX XXXXXXX
One Cleveland Center, Suite 1650
0000 X. 0xx Xxxxxx
Xxxxxxxxx, Xxxx 00000
(000) 000-0000
Fax (000) 000-0000
October 7, 1998
Xxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxx Xxxxxx, LLP
000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
RE: Xxxxx X. Xxxxxxx and Advanced Lighting Technologies, Inc.
Dear Xxx:
Pursuant to your request, please be advised that as of the close of
business on October 6, the actual debit balance in Xxxxx X. Xxxxxxx'x account at
Prudential Securities, Inc. was $15,049,195.00 and that the margin call was
$8,327,313.00. Please be advised that the amount of the debit balance and the
margin call will be affected by the day-to-day fluctuations in the stock price.
The money should be sent to the following by wire transfer:
Chase Manhattan Bank (Chase NYC)
ABA # 000000000
Account 066296390
Further credit to Xxxxx X. Xxxxxxx and
Prudential Securities Account Number JTW-001475
Sincerely,
XXXXXXX & XXXXXXX
/s/ Xxxxxx X. Xxxxxxxx/ajl
--------------------------
Xxxxxx X. Xxxxxxxx
DSS:ajl/16274_1
cc: Xx. Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx, Esq.
VIA FACSIMILE (216-363-5844)
----------------------------
23
EXHIBIT 1.2-C - SECURITY DOCUMENTS
LOAN AGREEMENT
XXXXX X. XXXXXXX / ADVANCED LIGHTING TECHNOLOGIES, INC.
[DOCUMENTS ATTACHED HERETO]
24
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement"), dated as of October 8,
1998, is made by XXXXX X. XXXXXXX ("Debtor"), having his principal residence at
0000 Xxxx Xxxx, Xxxxxxx Xxxxx, Xxxx 00000, in favor of ADVANCED LIGHTING
TECHNOLOGIES, INC. ("Secured Party"), an Ohio corporation having its principal
offices at 00000 Xxxxxx Xxxx, Xxxxx, Xxxx 00000.
BACKGROUND
A. Pursuant to the Loan Agreement dated as of even date herewith, by
and between Secured Party and Debtor (the "Agreement"), Secured Party advanced
Debtor the principal amount of Nine Million Dollars ($9,000,000) (the "Loan")
(any initially capitalized term that is used but not defined herein, has the
meaning ascribed to such term in the Agreement).
B. The Loan is evidenced by the Secured Promissory Note dated as of
even date herewith made by Debtor to the order of Secured Party (the "Note").
C. As a condition thereto, the Loan is secured by the security
interests granted by Debtor to Secured Party herein, by the mortgages and
security interests granted by Debtor to Secured Party in several Real Estate
Mortgages dated as of even date herewith (each a "Mortgage" and collectively the
"Mortgages") and by the contract rights assigned by Debtor to Secured Party in
the Collateral Assignment of Contract (the "Assignment") dated as of even date
herewith.
AGREEMENT
NOW, THEREFORE, as an inducement to and in consideration of the
foregoing, the agreements made herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1 GRANT. Debtor hereby grants, bargains, sells, conveys, mortgages, and
assigns to Secured Party a security interest in all right, title and interest of
Debtor in, to and under the property described in EXHIBIT A, together with all
other real and personal properties now owned or hereafter acquired by Debtor, of
every kind and description, wherever located, and in all (i) privileges and
appurtenances thereto, (ii) renewals or replacements thereof or articles in
substitution therefor, (iii) proceeds of any of the foregoing or from any
insurance payable with respect thereto (from whatever source), or payments from
any taking under power of eminent domain of all or any portion thereof, and (iv)
all rents, issues and profits or other amounts due to Debtor in respect thereof
(collectively, the "Collateral").
Page 1 of 10
25
2 PURPOSE. The security interest granted by Debtor to Secured Party in
SECTION 1 (the "Security Interest") secures the payment of principal in the
amount of Nine Million Dollars ($9,000,000), together with all interest thereon
and any other amounts now or hereafter owing from Debtor to Secured Party
hereunder, under the Mortgages, the Note, the Agreement, the Assignment and
under all other agreements entered into by Debtor and Secured Party in
connection herewith and therewith, and the performance by Debtor of all other of
his obligations hereunder and thereunder (collectively, the "Obligations").
3 REPRESENTATIONS AND WARRANTIES OF DEBTOR. Debtor represents and
warrants to Secured Party that, except as provided in SCHEDULE 3, and other than
the Security Interest or any lien created by the Mortgages:
3.1 no mortgage, lien, encumbrance or charge on, pledge of, security
interest in or conditional sale or other title retention agreement with respect
to the Collateral or any part thereof (including, without limitation, any lien,
encumbrance or charge arising by operation of law) now exists;
3.2 Debtor has not heretofore executed any financing statement or
security agreement of any type relating to the Collateral or any part thereof,
and no such financing statement or security agreement is now on file in any
public office;
3.3 the Security Interest created hereby is a first and best lien on
the Collateral;
3.4 Debtor has good title to all now owned Collateral; and
3.5 Debtor has full right and authority to grant the Security Interest
to Secured Party as provided herein.
4 GENERAL COVENANTS.
4.1 Debtor, at his expense, shall defend the Security Interest against
all claims and demands whatsoever.
4.2 Debtor, at his expense, shall: (i) cause all financing statements,
including all necessary amendments, supplements and appropriate continuation
statements to be recorded, registered and filed, and to be kept recorded,
registered and filed, in such manner and in such places; (ii) with respect to
the Collateral or some part thereof for which any negotiable certificate of
title or similar negotiable document is at any time outstanding, promptly advise
Secured Party thereof, cause the interest of Secured Party to be properly and
promptly noted thereon, and promptly deliver to Secured Party any such
negotiable certificate or document; (iii) with respect to any of the Collateral
which is the type that the Uniform Commercial Code requires delivery to a
secured party, with powers or instruments
Page 2 of 10
26
of transfer, to perfect a security interest therein, deliver such Collateral to
Secured Party, together with powers and instruments of transfer executed in
blank as required by Secured Party; and (iv) take all other actions and execute
all other instruments required, in order to perfect, and keep perfected, the
Security Interest in the Collateral granted to Secured Party herein, subject
only to Permitted Encumbrances (defined herein).
4.3 All property of every kind acquired by Debtor after the date
hereof, shall immediately upon the acquisition thereof by Debtor, and without
further action by Debtor, become subject to the Security Interest, as fully as
though now owned by Debtor and specifically described herein. Nevertheless,
Debtor shall take such actions and execute and deliver such additional
instruments as Secured Party shall reasonably require to further evidence or
confirm the subjection of such property to the Security Interest.
4.4 With the exception of Debtor's cash, money and deposit accounts,
which Debtor may continue to use throughout the duration of this Agreement,
Debtor shall not sell, rent, convey, assign or transfer the Collateral or any
part or interest therein without the prior written consent of Secured Party,
which shall not be unreasonably withheld. Debtor shall not directly or
indirectly create or permit to remain, and will promptly discharge, any
mortgage, lien, encumbrance or charge on, pledge of, security interest in or
conditional sale or other title retention agreement with respect to the
Collateral or any part thereof, or the interest of Debtor or Secured Party
therein, or any revenues, income or profit or other sums arising from the
Collateral or any part thereof, (including, without limitation, any lien,
encumbrance or charge arising by operation of law) other than: (i) the Security
Interest and any other liens or rights of Secured Party granted in any of the
Loan Documents; (ii) the lien of any mortgage lender(s) identified in SCHEDULE 3
(the "Senior Lender(s)"); (iii) liens for taxes, assessments and other
governmental charges which are not at the time required to be paid; (iv) liens
of mechanics, materialmen, suppliers or vendors or rights thereto for amounts
which at the time are not required to be paid; and (v) purchase money security
interests in property purchased on credit or with borrowed money and which
secures the repayment of such credit or borrowed money (collectively, the
"Permitted Encumbrances").
4.5 Debtor hereby authorizes and empowers Secured Party, at its option,
to do all things authorized or required to be done by Secured Party, as a
secured party, under the laws of the state of Ohio and, if different, the state
in which any of the Collateral is located, to protect and perfect its interests
in the Collateral, and in furtherance thereof, Debtor hereby grants Secured
Party the right and power to execute all financing statements and instruments of
conveyance in Debtor's name. This power is coupled with an interest and is
irrevocable.
4.6 Nothing contained in this Agreement shall constitute any request by
Secured Party, express or implied, for the performance of any labor or services
or the furnishing of any materials or other property in respect of the
Collateral or any part thereof, or be construed to give Debtor any right, power
or authority to contract for or permit the
Page 3 of 10
27
performance of any labor or services or the furnishing of any materials or other
property in such fashion as would provide the basis for any claim either against
Secured Party or that any lien based on the performance of such labor or
services or the furnishing of any such materials or other property is prior to
the Security Interest.
4.7 Without affecting the liability of any other person liable for the
payment of any obligation herein mentioned, and without affecting the Security
Interest upon any portion of the Collateral not then or theretofore released as
security for the full amount of all unpaid or unperformed Obligations, Secured
Party may, from time to time and without notice, (a) release any person so
liable; (b) extend the maturity or alter any of the terms of any such
obligation; (c) grant other indulgences; (d) release or reconvey, or cause to be
released or reconveyed at any time at Secured Party's option any or all of the
Collateral; (e) take or release any other or additional security for any
Obligation; or (f) make compositions or other arrangements with debtors in
relation thereto.
4.8 Debtor shall pay promptly when due, and before penalty or interest
accrue thereon, all taxes, assessments, whether general or special, all other
governmental charges and all public or private utility charges of any kind
whatsoever foreseen or unforeseen, ordinary or extraordinary that now or may at
any time hereafter be assessed, levied or imposed against or with respect to the
Collateral or any part thereof which, if not paid, may become or be made a lien
on the Collateral, or any part thereof.
4.9 Debtor shall keep the real and personal property included in the
Collateral continuously insured with risk and liability insurance in such
amounts as Secured Party reasonably requires. All insurance shall be obtained
and maintained with generally recognized, responsible insurance companies.
Debtor shall furnish Secured Party with a certificate of insurance for each
policy setting forth the coverage, the limits of liability, the name of the
carrier, the policy number and the expiration date. Each policy of insurance
shall be written so as not to be subject to cancellation or substantial
modification which phrase shall include any reduction in the scope or limits of
coverage upon less than thirty (30) days advance written notice to Secured
Party. All policies of insurance shall name Secured Party as an additional
insured and loss payee, as applicable.
4.10 Debtor, at its expense, shall comply with all laws with respect to
the Collateral, and shall keep or cause to be kept the Collateral in good order
and condition (ordinary wear and tear excepted) and shall make or cause to be
made all necessary or appropriate repairs, replacements and renewals thereof,
ordinary and extraordinary, foreseen and unforeseen unless Secured Party
otherwise consents in writing. Debtor shall not do, or permit to be done, any
act or thing which might materially impair the value or usefulness of the
Collateral or any part thereof, shall not commit or permit any waste of the
Collateral or any part thereof, and shall not permit any unlawful use or
occupation of the Collateral or any part thereof.
Page 4 of 10
28
4.11 Debtor further covenants and agrees with Secured Party that
neither Debtor nor any of its agents, employees, independent contractors,
invitees, licensees, successors, assignees, tenants or subtenants will store,
release or dispose of or permit the storage, release or disposal of any
hazardous or toxic substances or hazardous waste on any real property included
in the Collateral at any time from and after the effective date of this
Agreement.
5 CONFLICT. To the extent that the Collateral is covered by this
Agreement, any of the Mortgages or the Assignment, the provisions of all shall
apply, but in the event of a conflict, the provisions of this Agreement shall
govern as to all portions of the Collateral as constitutes personal property,
the Mortgage in question shall govern as to real property and fixtures and the
Assignment shall govern as to the contract rights set forth therein. Other than
fixtures in which Secured Party has a perfected security interest by the
Mortgages, the Collateral, and each and every part thereof, shall be and remain
personal property notwithstanding the manner in which it may be attached or
affixed to real estate. (This provision shall not affect the security interest
granted herein or the enforceability of this Agreement.)
6 INDEMNIFICATION. Debtor will protect, indemnify and save harmless
Secured Party from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses as may be limited by law or judicial
order or decision entered in any action brought to recover moneys under this
Section) imposed upon, incurred by or asserted against Secured Party by reason
of the Security Interest or any other interest of Secured Party in the
Collateral or any part thereof.
7 DAMAGE OR DESTRUCTION. In case of any damage to or destruction of the
Collateral, or any part thereof, Debtor will promptly give written notice
thereof to Secured Party generally describing the nature and extent of such
damage or destruction. Any insurance or other proceeds from any such damage or
destruction shall be paid to Secured Party unless it otherwise consents to
Debtor's use of such proceeds to repair the damage or destruction, which consent
shall not be unreasonably withheld.
8 EMINENT DOMAIN. If title to or the temporary use of the Collateral,
or any part thereof, shall be taken under the exercise of the power of eminent
domain by any governmental body or by any person, firm or corporation acting
under any governmental body or by any person, firm or corporation acting under
governmental authority, Debtor will promptly give written notice thereof to
Secured Party describing the nature and extent of such taking. Any proceeds
received from any award made in such eminent domain proceedings shall be paid to
Secured Party.
Page 5 of 10
29
9 DEFAULT.
9.1 If Debtor shall fail to make any payment or perform any act
required to be made or performed hereunder or under the Agreement, any of the
Mortgages, the Note or the Assignment, Secured Party, without notice or demand
upon Debtor and without waiving or releasing any obligation or default, may, but
shall be under no obligation to, make such payment or perform such act for the
account and at the expense of Debtor and may enter upon Debtor's land or any
part thereof for such purpose and take all such action thereon as, in its sole
opinion, may be necessary or appropriate therefor. All payments so made by
Secured Party and all costs, fees and expenses incurred in connection therewith
or in connection with the performance by Secured Party of any such act, together
with interest thereon at eight percent (8%) per annum shall, together with such
interest, be additional indebtedness secured by this Agreement and shall be paid
by Debtor to Secured Party on demand. In any action brought to collect such
indebtedness, or to foreclose this Agreement, Secured Party shall be entitled to
the recovery of such expenses in such action except as limited by law or
judicial order or decision entered in such proceedings.
9.2 Any default by Debtor of any obligation hereunder, any Default
under the Note, any of the Mortgages, and the Assignment and any Event of
Default under the Agreement or any default of any of the other Obligations shall
be an "Event of Default" under this Agreement.
9.3 If an Event of Default shall have occurred and be continuing,
Secured Party, at any time, at its election, may exercise any or all or any
combination of the remedies conferred upon or reserved to it under this
Agreement, the Agreement, the Note, any of the Mortgages, the Assignment or now
or hereafter existing at law, or in equity or by statute. Without limitation,
Secured Party may (a) declare the entire unpaid principal balance of the Note
and all other indebtedness secured hereby immediately due and payable, without
notice or demand, the same being expressly waived by Debtor, subject to any cure
periods provided for in the Note for non-monetary defaults; (b) proceed at law
or equity to collect all indebtedness secured by this Agreement due hereunder,
whether at maturity or by acceleration; (c) foreclose the lien of this Agreement
as against all or any part of the Collateral; and (d) exercise any rights,
powers and remedies it may have as a secured party under the Uniform Commercial
Code, or other similar laws in effect, including, without limitation, the option
of proceeding as to both personal property and fixtures in accordance with
Secured Party's rights with respect to real property.
9.4 No failure by Secured Party to insist upon the strict performance
of any term hereof or to exercise any right, power or remedy consequent upon an
Event of Default, shall constitute a waiver of any such term or of any such
Event of Default. No waiver of any Event of Default shall affect or alter this
Agreement, which shall continue in full force, and shall not effect a waiver
with respect to any subsequent such Event of Default or to any other then
existing or subsequent breach.
Page 6 of 10
30
10 WAIVER. Debtor does hereby waive to the full extent it may lawfully
do so, the benefit of all appraisement, valuation, stay and extension laws now
or hereafter in force and all rights of marshaling of assets in the event of any
sale of the Collateral, any part thereof or any interest therein and any court
having jurisdiction to foreclose the lien thereof may sell the Collateral in
part or as an entirety.
11 DISTRIBUTION. All amounts (including, without limitation, the
proceeds of any sale of the Collateral, any part thereof or any interest
therein) received by Secured Party hereunder shall be applied to amounts due to
it from Debtor hereunder and under the Note, the Agreement, any of the
Mortgages, the Assignment and the other Obligations, and shall be applied as
follows:
First: the payment of all costs incurred in the collection thereof
(including, without limitation, reasonable attorneys' fees and expenses except
as may have been limited by law or by judicial order or decision entered in any
action to foreclose this Agreement);
Second: the payment of indebtedness secured by this Agreement owing to
Secured Party, other than indebtedness with respect to the Note at the time
outstanding; and
Third: the payment to Secured Party for the payment of all amounts
payable under the Note in the order provided for therein.
12 RIGHTS AND REMEDIES OF SECURED PARTY.
12.1 Each right, power and remedy of Secured Party, provided for in
this Agreement, in the Agreement, the Note, any of the Mortgages, the Assignment
or now or hereafter existing at law or in equity or by statute or otherwise,
shall be cumulative and concurrent and shall be in addition to every other
right, power or remedy provided for in this Agreement, in the Agreement, the
Note, any of the Mortgages, the Assignment or now or hereafter existing at law
or in equity or by statute or otherwise, and the exercise or beginning of the
exercise or partial exercise by Secured Party of any one or more of such rights,
powers or remedies shall not preclude the simultaneous or later exercise by
Secured Party of any or all such other rights, powers or remedies.
12.2 All rights, powers and remedies provided herein may be exercised
only to the extent that the exercise thereof does not violate any applicable
law, and are intended to be limited to the extent necessary so that they will
not render this Agreement invalid, unenforceable or not entitled to be recorded,
registered or filed under any applicable law.
12.3 In case Secured Party shall have proceeded to enforce any right,
power or remedy under this Agreement by foreclosure, entry or otherwise, and
such proceedings shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to Secured Party, then and in every case
Debtor and Secured Party shall be
Page 7 of 10
31
restored to their former positions and rights hereunder, and all rights, power
and remedies of Secured Party shall continue as if no such proceeding had been
taken.
12.4 Secured Party shall have no liability for any loss, damage,
injury, cost or expense resulting from any act or omission to act by it or its
representatives whether or not negligent, which was taken or omitted pursuant to
this Agreement.
12.5 All sums payable by Debtor hereunder shall be paid without notice,
demand, counterclaims, setoff, deduction or defense, and without abatement,
suspension, deferment, diminution or reduction, and the obligations and
liabilities of Debtor hereunder shall in no way be released, discharged or
otherwise affected (except as expressly provided herein) by reason of (a) any
damage to or destruction of or any condemnation or similar taking of the
Collateral or any part thereof; (b) any restriction or prevention of or
interference with any use of the Collateral or any part thereof; (d) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to Debtor or any action taken with
respect to this Agreement by any trustee or receiver of Debtor, or by any court
in such proceeding; (e) any claim which Debtor has or might have against Secured
Party; (f) any default or failure on the part of Secured Party to perform or
comply with any of the terms hereof or of any other agreements pertaining to the
loan on the Collateral with Debtor; or (g) any other occurrence whatsoever,
whether similar or dissimilar to the foregoing, whether or not Debtor shall have
notice or knowledge of any of the foregoing. Except as expressly provided
herein, Debtor waives all rights now or hereafter conferred by statute or
otherwise to any abatement, suspension, deferment, diminution or reduction of
any sum secured hereby and payable by Debtor.
13 ADDITIONAL SECURITY. Without notice to or consent of Debtor and
without impairment of the lien and rights created by this Agreement, Secured
Party may accept from Debtor or from any other person or persons, additional
security for the indebtedness secured by this Agreement. Neither the giving of
this Agreement nor the acceptance of any such additional security shall prevent
Secured Party from resorting first to such additional security or to the
security created by this Agreement, in either case without affecting the lien
hereof and the rights conferred hereunder.
14 TERMINATION. If all sums then due and payable under this Agreement,
the Note and the Agreement by Debtor shall have been paid and Debtor shall have
complied with all the terms, conditions and requirements hereof and thereof,
then this Agreement shall be null and void and of no further force and effect.
Upon the written request and at the expense of Debtor, Secured Party will
execute and deliver such proper instruments of release and discharge as may
reasonably be requested to evidence such defeasance, release and discharge.
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32
15 RIGHT OF ENTRY. Secured Party and its representatives are hereby
authorized to the Collateral at reasonable times, and so long as Secured Party
does not unreasonably interfere with Debtor's use and enjoyment of the
Collateral.
16 FEES. Debtor shall, to the extent permitted by law, immediately upon
demand pay or reimburse Secured Party for all reasonable attorneys' fees, costs
and expenses incurred by Secured Party in any proceedings involving the estate
of a decedent, an insolvent or a debtor under federal bankruptcy law, or in any
action, proceeding or dispute of any kind in which Secured Party is made a
party, or appears as an intervener or party plaintiff or defendant, affecting or
relating to the Note, this Agreement or the Agreement, any of the Mortgages, the
Assignment, Debtor or any of the Collateral, including, but not limited to, the
foreclosure of this Agreement, any condemnation action involving the Collateral,
or any action to protect the security hereof, and any such amounts paid by
Secured Party shall, except as may be limited by law or judicial order or
decision entered in any action to foreclose this Agreement, be added to the
indebtedness secured hereby and secured by the lien and security interest of
this Agreement and shall bear interest at eight percent (8%) per annum.
17 GOVERNING LAW; SEVERABILITY; HEADINGS; COUNTERPARTS. This Agreement
shall be deemed to be made under the laws of the state of Ohio and for all
purposes shall be governed by and construed in accordance with the laws of Ohio
without regard to conflict of laws principles (except to the extent the
Collateral is situated in a state other than Ohio and in that case any laws of
such state which are required to control mortgages granted on such property
shall apply) and shall inure to the benefit of and be binding upon Debtor and
his estate, heirs, executors, administrators and personal representatives,
successors and assigns and Secured Party and its successors and assigns. If any
term or provision of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity of the remaining provisions hereof shall in no way
be affected thereby. The captions or headings herein shall be solely for
convenience of reference and in no way define, limit or describe the scope or
intent of any provisions or sections of this Agreement. This Agreement may be
executed in any number of counterparts, each of which shall be regarded as an
original and all of which shall constitute but one and the same instrument; it
shall not be necessary in proving this Agreement to produce or account for more
than one such counterpart.
18 CONSENT. This Agreement may not be effectively amended, changed,
modified, altered or terminated except as provided herein without the prior
written consent of Secured Party.
19 NOTICES. All notices, certificates, requests or other communications
hereunder shall be in writing and shall be deemed to be sufficiently given when
mailed by registered or certified mail, postage prepaid, and addressed to the
addresses set forth herein. Debtor and Secured Party may, by notice given
hereunder, designate any further
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33
or different addresses to which subsequent notices, certificates, requests or
other communications shall be sent.
20 ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof,
and all prior and contemporaneous agreements or discussions, written or oral,
shall have no force or effect whatsoever. No amendment or any waiver of any term
of this Agreement shall be enforceable unless it is in writing and executed by
both parties hereto.
IN WITNESS WHEREOF, Debtor and Secured Party have caused this
instrument to be duly executed and delivered as of the date written below.
DEBTOR:
XXXXX X. XXXXXXX
Date:
-------------------------------
SECURED PARTY:
ADVANCED LIGHTING TECHNOLOGIES, INC.
By:
--------------------------------
Its:
--------------------------------
Date:
--------------------------------
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34
EXHIBIT A - COLLATERAL
SECURITY AGREEMENT
XXXXX X. XXXXXXX / ADVANCED LIGHTING TECHNOLOGIES, INC.
I. All personal property now owned or hereinafter acquired
including, but not limited to, stocks; bonds and other
securities; investment property; contract rights; furniture;
furnishings; chattel papers; deposit accounts; documents;
choses in action; money; instruments; goods (whether covered
by a certificate of title or not); general intangibles;
foreign currency; letters of credit; advices of credit; and
II. A 1997 Regal pleasure boat, Registration Number FL1982KB, Hull
Identification Number RGMPA012G697 and all engines, fixtures
and chattels now or hereinafter attached thereto or found
thereon; and
III. With respect to all of the foregoing, all (i) privileges and
appurtenances thereto, (ii) renewals or replacement thereof or
articles in substitution therefor, (iii) proceeds of any of
the foregoing or from any insurance payable with respect
thereto (from whatever source), or payments from any taking
under power of eminent domain of all or any portion thereof,
and (iv) all rents, issues, profits or other amounts due to
Debtor in respect thereof; and
IV. Notwithstanding the foregoing, the Collateral shall not
include any stock, bonds, or other securities held by Debtor
in Advanced Lighting Technologies, Inc. nor any membership
interest in Xxxxxxx, Ltd.
35
SCHEDULE 3
SECURITY AGREEMENT
XXXXX X. XXXXXXX / ADVANCED LIGHTING TECHNOLOGIES, INC.
1. Key Bank National Association - Senior Lender on property
located at 0000 Xxxx Xxxx, Xxxxxxx Xxxxx, Xxxx 00000-0000.
2. First Union National Bank of Florida - Senior Lender on
property located at 00000 Xxxxxx Xxxxx Xxxxx, Xxxxxx Xxxxxxx,
Xxxxxxx 00000-0000.
3. Xxxxxxx Xxxxx Credit Corporation - Senior Lender on
property located at 000 Xxxxxxxx Xxxxx and 000 Xxxxxxxx Xxxxx,
Xxxxxx, Xxxx 00000
36
COLLATERAL ASSIGNMENT OF CONTRACT
THIS COLLATERAL ASSIGNMENT OF CONTRACTS, (this "Assignment") dated as
of October 8, 1998, is made by and between XXXXX X. XXXXXXX ("Assignor"), having
his principal residence at 0000 Xxxx Xxxx, Xxxxxxx Xxxxx, Xxxx 00000 and
ADVANCED LIGHTING TECHNOLOGIES, INC., ("Assignee"), an Ohio corporation having
its principal offices at 00000 Xxxxxx Xxxx, Xxxxx, Xxxx 00000.
BACKGROUND
A. Pursuant to the Loan Agreement dated as of even date herewith by and
between Assignor and Assignee (the "Agreement"), Assignee advanced Assignor the
principal amount of Nine Million Dollars ($9,000,000) (the "Loan").
B. The Loan is evidenced by a Secured Promissory Note dated as of even
date herewith made by Assignor to the order of Assignee (the "Note").
C. As a condition thereto, the Loan is secured by the security
interests granted by Assignor to Assignee in the Security Agreement dated as of
even date herewith (the "Security Agreement") and by the mortgage and security
interests granted by Assignor to Assignee in several Real Estate Mortgages dated
as of even date herewith (each a "Mortgage" and collectively the "Mortgages").
D. As a condition to making the Loan, Assignee has required that
Assignor assign to it Assignor's contract rights set forth in EXHIBIT A, and
Assignor has agreed to the same, upon the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the Loan and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged,
the parties hereto agree as follows:
1 ASSIGNMENT. Assignor hereby assigns, transfers and sets over to
Assignee all rights in, to and under, his Contracts rights set forth in EXHIBIT
A and all monies due and to become due pursuant to and all claims, demands and
causes of action that Assignor now has or which may hereafter arise against all
parties under Assignor's security interest and contract rights set forth in
EXHIBIT A (the "Contracts"); provided, however, that nothing in this Assignment
shall be construed as imposing on Assignee any of Assignor's duties or
obligations under the Contracts.
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37
2 REPRESENTATIONS AND WARRANTIES OF ASSIGNOR.
2.1 Assignor represents and warrants that he has not executed any prior
sale, assignment, transfer, mortgage or pledge of his rights in the Contracts
and shall not sell, assign, transfer, mortgage or pledge his rights in the
Contracts or any proceeds arising therefrom, whether now due or hereafter to
become due, to any firm, person or corporation, except the assignment as set
forth herein.
2.2 Assignor further represents and warrants that the terms and
conditions of the Contracts have been fully set out and disclosed in the copies
thereof that have been delivered by Assignor to Assignee.
2.3 Assignor further represents and warrants that he has full right and
authority to grant this Assignment to Assignee as provided herein.
3 GENERAL COVENANTS.
3.1 Assignor shall execute and deliver to Assignee at any time or times
during which this Assignment shall be in effect such further instruments as
Assignee may deem to be necessary or appropriate to make effective this
Assignment and the covenants herein contained.
3.2 Assignor shall (i) observe and perform, or cause to be observed and
performed, in a timely manner, each and every term, covenant and provision of
the Contracts on its part thereunder to be observed and performed; (ii) send
promptly to Assignee copies of all notices of default which Assignor shall send
or receive with respect to the Contracts; (iii) enforce short of termination
thereof the observance and performance of each and every term, covenant and
provision of the Contracts on the part of any party thereunder to be observed
and performed; and (iv) to appear in and defend, at his expense, any action or
proceeding arising under or in any manner connected with the Contracts.
3.3 Assignee is granted a security interest in and to the Contracts and
all monies and claims for money due or to become due to Assignor under the
Contracts. For this purpose, Assignee shall be deemed a secured party, and
Assignor shall be deemed a debtor. Assignor agrees to take such actions as
Assignee may require to perfect the security interest granted hereby, including,
without limitation, the preparation, execution and filing of financing
statements in all appropriate offices.
3.4 At any time and from time to time, upon request of the Assignee,
Assignor will give, execute, file and record any notice, financing statement,
continuation statement, instrument, document or agreement that the Assignee may
consider necessary or desirable to create, preserve, continue, perfect or
validate any security interest granted
Page 2 of 8
38
hereunder or which the Assignee may consider necessary or desirable to exercise
or enforce its rights hereunder with respect to such security interest. Without
limiting the generality of the foregoing, the Assignee is authorized to file
with respect to the Contracts one or more financing statements, continuation
statements or other documents without the signature of the Assignor and to name
therein the Assignor as debtor and the Assignee as secured party; and correct or
complete, or cause to be corrected or completed, any financing statements,
continuation statements or other such documents as have been filed naming the
Assignor as debtor and the Assignee as secured party. The Assignor hereby
appoints the Assignee as its attorney-in-fact and authorizes Assignee, on behalf
of the Assignor, to execute, acknowledge, deliver, file and record any and all
documents requiring execution by the Assignor and necessary or desirable to
effectuate or facilitate the purposes of this Assignment and the obligations or
covenants of Assignor hereunder. The power of attorney granted hereby is coupled
with an interest and is irrevocable.
4 RIGHTS OF ASSIGNOR. As long as no Event of Default (defined herein)
occurs under this Assignment, the Agreement, the Note, the Security Agreement or
any of the Mortgages, Assignor shall be entitled to collect, receive and apply
for its own account any sums due it pursuant to the Contracts and to prosecute,
compromise or take any other actions which Assignor, in its reasonable
discretion, deems appropriate with respect to all rights, claims, demands, or
causes of action which Assignor now has or which may hereafter arise pursuant to
the Contracts, except as may be expressly provided to the contrary in this
Assignment.
5 CONFLICT. To the extent that the Contracts are covered by this
Assignment, the Agreement, the Security Agreement or any of the Mortgages, the
provisions of all shall apply, but in the event of a conflict, the provisions of
this Assignment shall govern as to the Contracts.
6 INDEMNIFICATION. Assignor shall indemnify, defend and hold Assignee
harmless from and against any and all liability, loss, damage, and expense,
including attorneys' fees, which Assignee may incur under the Contracts or by
reason of this Assignment, the Agreement, the Security Agreement or any of the
Mortgages.
7 DEFAULT.
7.1 Any default by Assignor of any obligation hereunder, any Event of
Default under the Note, the Agreement, the Security Agreement or any of the
Mortgages shall be an "Event of Default" under this Assignment.
7.2 Immediately upon any Event of Default, Assignee is authorized to
exercise any and all rights of Assignor pursuant to the Contracts and to receive
for Assignor's account, and not as a lender, all sums due Assignor pursuant to
the Contracts, and Assignee is further authorized to prosecute, compromise or
take any other action which
Page 3 of 8
39
Assignor might take with respect to any claim, demand or cause of action related
to the Contracts as Assignee deems appropriate, including, without limitation,
prosecution, compromise or release of such claims. It shall be an Event of
Default if the Contracts are terminated or modified without the prior written
consent of Assignee.
7.3 If an Event of Default shall have occurred and be continuing,
Assignee, at any time, at its election, may exercise any or all or any
combination of the remedies conferred upon or reserved to it under this
Assignment, the Agreement, the Note, the Security Agreement, any of the
Mortgages, or now or hereafter existing at law, or in equity or by statute.
Without limitation, Assignee may (a) declare the entire unpaid principal balance
of the Note and all other indebtedness immediately due and payable, without
notice or demand, the same being expressly waived by Assignor, subject to any
cure periods provided for in the Note for non-monetary defaults; (b) proceed at
law or equity to collect all indebtedness of Assignor to Assignee; (c) foreclose
the lien of this Assignment; and (d) exercise any rights, powers and remedies it
may have as a secured party under the Uniform Commercial Code, or other similar
laws in effect.
7.4 No failure by Assignee to insist upon the strict performance of any
term hereof or to exercise any right, power or remedy consequent upon an Event
of Default, shall constitute a waiver of any such term or of any such Event of
Default. No waiver of any Event of Default shall affect or alter this
Assignment, which shall continue in full force, and shall not effect a waiver
with respect to any subsequent such Event of Default or to any other then
existing or subsequent breach.
8 DISTRIBUTION. All amounts received by Assignee hereunder shall be
applied to amounts due to it from Assignor under the Note, the Agreement, the
Security Agreement and any of the Mortgages, and shall be applied as follows:
First: the payment of all costs incurred in the collection thereof
(including, without limitation, reasonable attorneys' fees and expenses except
as may have been limited by law or by judicial order or decision entered in any
action to enforce this Assignment);
Second: the payment of indebtedness secured by the Security Agreement
owing to Assignee, other than indebtedness with respect to the Note at the time
outstanding; and
Third: the payment to Assignee for the payment of all amounts payable
under the Note in the order provided for therein.
9 RIGHTS AND REMEDIES OF ASSIGNEE.
9.1 Each right, power and remedy of Assignee, provided for in this
Assignment, in the Agreement, the Note, the Security Agreement, any of the
Mortgages or now or hereafter existing at law or in equity or by statute or
otherwise, shall be cumulative and
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40
concurrent and shall be in addition to every other right, power or remedy
provided for in this Assignment, in the Agreement, the Note, Security Agreement,
any of the Mortgages or now or hereafter existing at law or in equity or by
statute or otherwise, and the exercise or beginning of the exercise or partial
exercise by Assignee of any one or more of such rights, powers or remedies shall
not preclude the simultaneous or later exercise by Assignee of any or all such
other rights, powers or remedies.
9.2 All rights, powers and remedies provided herein may be exercised
only to the extent that the exercise thereof does not violate any applicable
law, and are intended to be limited to the extent necessary so that they will
not render this Assignment invalid, unenforceable or not entitled to be
recorded, registered or filed under any applicable law.
9.3 In case Assignee shall have proceeded to enforce any right, power
or remedy under this Assignment, and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to Assignee, then and in every case Assignor and Assignee shall be
restored to their former positions and rights hereunder, and all rights, power
and remedies of Assignee shall continue as if no such proceeding had been taken.
9.4 Assignee shall have no liability for any loss, damage, injury, cost
or expense resulting from any act or omission to act by it or its
representatives whether or not negligent, which was taken or omitted pursuant to
this Assignment.
9.5 All sums and monies due and payable by Assignor hereunder shall be
paid without notice, demand, counterclaims, setoff, deduction or defense, and
without abatement, suspension, deferment, diminution or reduction, and the
obligations and liabilities of Assignor hereunder shall in no way be released,
discharged or otherwise affected (except as expressly provided herein) by reason
of (a) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to Assignor or any
action taken with respect to this Assignment by any trustee or receiver of
Assignor, or by any court in such proceeding; (e) any claim which Assignor has
or might have against Assignee; (f) any default or failure on the part of
Assignee to perform or comply with any of the terms hereof or of any other
agreements pertaining to the Loan; or (g) any other occurrence whatsoever,
whether similar or dissimilar to the foregoing, whether or not Assignor shall
have notice or knowledge of any of the foregoing. Except as expressly provided
herein, Assignor waives all rights now or hereafter conferred by statute or
otherwise to any abatement, suspension, deferment, diminution or reduction of
any sum secured hereby and payable by Assignor.
10 TERMINATION. If all sums then due and payable under the Note and the
Agreement by Assignor shall have been paid and Assignor shall have complied with
all the terms, conditions and requirements hereof and thereof, then this
Assignment shall be null and void and of no further force and effect. Upon the
written request and at the expense
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41
of Assignor, Assignee will execute and deliver such proper instruments of
release and discharge as may reasonably be requested to evidence such
defeasance, release and discharge.
11 FEES. Assignor shall, to the extent permitted by law, immediately
upon demand pay or reimburse Assignee for all reasonable attorneys' fees, costs
and expenses incurred by Assignee in any proceedings involving the estate of a
decedent, an insolvent or a debtor under federal bankruptcy law, or in any
action, proceeding or dispute of any kind in which Assignee is made a party, or
appears as an intervener or party plaintiff or defendant, affecting or relating
to the Note, this Assignment, the Agreement, the Security Agreement or any of
the Mortgages.
12 GOVERNING LAW; SEVERABILITY; HEADINGS; COUNTERPARTS. This Assignment
shall be deemed to be made under the laws of the state of Ohio and for all
purposes shall be governed by and construed in accordance with the laws of Ohio
without regard to conflict of laws principles and shall inure to the benefit of
and be binding upon Assignor and his estate, heirs, executors, administrators
and personal representatives, successors and assigns and Assignee and its
successors and assigns. If any term or provision of this Assignment shall be
held to be invalid, illegal or unenforceable, the validity of the remaining
provisions hereof shall in no way be affected thereby. The captions or headings
herein shall be solely for convenience of reference and in no way define, limit
or describe the scope or intent of any provisions or sections of this
Assignment. This Assignment may be executed in any number of counterparts, each
of which shall be regarded as an original and all of which shall constitute but
one and the same instrument; it shall not be necessary in proving this
Assignment to produce or account for more than one such counterpart.
13 CONSENT. This Assignment may not be effectively amended, changed,
modified, altered or terminated except as provided herein without the prior
written consent of Assignee.
14 NOTICES. All notices, certificates, requests or other communications
hereunder shall be in writing and shall be deemed to be sufficiently given when
mailed by registered or certified mail, postage prepaid, and addressed to the
addresses set forth herein. Assignor and Assignee may, by notice given
hereunder, designate any further or different addresses to which subsequent
notices, certificates, requests or other communications shall be sent.
15 ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Assignment constitutes the
entire agreement between the parties with respect to the subject matter hereof,
and all prior and contemporaneous agreements or discussions, written or oral,
shall have no force or effect whatsoever. No amendment or any waiver of any term
of this Assignment shall be enforceable unless it is in writing and executed by
both parties.
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IN WITNESS WHEREOF, the Assignor and Assignee have caused this
instrument to be executed as of the date written below.
ASSIGNOR:
XXXXX X. XXXXXXX
_______________________________________
Date: _________________________________
ASSIGNEE:
ADVANCED LIGHTING TECHNOLOGIES, INC.
By: ___________________________________
Its: ___________________________________
Date: _________________________________
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EXHIBIT A - CONTRACTS ASSIGNMENT
COLLATERAL ASSIGNMENT OF CONTRACTS
XXXXX X. XXXXXXX / ADVANCED LIGHTING TECHNOLOGIES
All Contracts by and between Assignor and 00 Xxxxx Xxxxxx, Inc.,
including but not limited to, the following:
1. Promissory Note executed by 00 Xxxxx Xxxxxx, Inc.
and payable to Xxxxx X. Xxxxxxx dated May 19, 1997;
2. Security Agreement by and between 00 Xxxxx Xxxxxx, Inc. and
Xxxxx X. Xxxxxxx dated May 19, 1997;
3. Unconditional Guaranty executed by Xxxxxx X. Xxxxxxxx dated
May 19, 1997;
4. Allonge No. 1 to Promissory Note executed by 00 Xxxxx
Xxxxxx, Inc. dated September 2, 1998; and
5. Confirmation of Guaranty executed by Xxxxxx X. Xxxxxxxx dated
September 2, 1998.
44
THIS AND OTHER MORTGAGES ARE GIVEN TO SECURE A MULTI-STATE LOAN OF $9,000,000
AND IS BEING RECORDED IN XXX COUNTY, FLORIDA. FLORIDA DOCUMENTARY STAMP TAXES
AND NON-RECURRING INTANGIBLE PROPERTY TAXES ARE BEING PAID IN XXX COUNTY,
FLORIDA. FLORIDA DOCUMENTARY STAMP TAXES ARE BEING PAID IN THE AMOUNT OF $2,898
BASED UPON THE $400,000 EQUITY VALUE OF THE FLORIDA REAL PROPERTY MORTGAGED
HEREBY. FLORIDA NON-RECURRING INTANGIBLE PROPERTY TAXES ARE BEING PAID IN THE
AMOUNT OF $1,656 BASED UPON THE PERCENTAGE THAT THE VALUE OF THE FLORIDA REAL
PROPERTY MORTGAGED HEREBY BEARS TO THE TOTAL VALUE OF ALL FLORIDA AND
NON-FLORIDA REAL AND PERSONAL PROPERTY COLLATERAL SECURITY FOR SUCH LOAN. AS
CONSEQUENCE, THE AGGREGATE AMOUNT OF FLORIDA NON-RECURRING INTANGIBLE PROPERTY
TAXES BEING PAID IN RESPECT OF THIS MORTGAGE IS $1,656. THE CALCULATION OF SUCH
TAXES IS SET FORTH IN EXHIBIT B HERETO.
REAL ESTATE MORTGAGE
Filed for record in ______ County, ______ on
February ____, 1999, ______ o'clock _.m., E.D.T.
No. _______________ and recorded at
Volume ______, Page _______,
______ County, ______, Mortgage Records
As an inducement to and in consideration of the loan to the
undersigned, XXXXX X. XXXXXXX ("Mortgagor"), having his principal residence at
0000 Xxxx Xxxx, Xxxxxxx Xxxxx, Xxxx 00000 by ADVANCED LIGHTING TECHNOLOGIES,
INC., ("Mortgagee"), an Ohio corporation having its principal offices at 00000
Xxxxxx Xxxx, Xxxxx, Xxxx 00000, pursuant to the Loan Agreement dated as of
October 8, 1998, by and between Mortgagor and Mortgagee (the "Agreement"), and
evidenced by the Secured Promissory Note dated as of October 8, 1998, with a
maturity date of October 6, 1999, made by Mortgagor to Mortgagee (the "Note"),
and further evidenced by the Security Agreement and the Collateral Assignment of
Contract both dated as of October 8, 1998, by and between Mortgagor and
Mortgagee (respectively, the "Security Agreement" and the "Assignment"), and for
other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Mortgagor hereby grants, bargains, sells, conveys, mortgages,
assigns and grants a security interest in and transfers unto Mortgagee, its
successors and assigns, to have and to hold forever, all right, title and
interest of Mortgagor in and to the real property described in EXHIBIT A,
together with all other real properties now or hereafter made subject to the
lien of this Mortgage by supplemental mortgage or otherwise, and (i) in and to
the buildings and other improvements now or hereafter situated thereon; (ii) all
privileges and appurtenances thereto; (iii) all fixtures now or hereafter
attached to and used in connection therewith; (iv) all renewals or replacements
thereof or articles in substitution therefor; (v) all proceeds of any of the
foregoing or from any insurance payable with respect thereto (from whatever
source), or payments from any taking under power of eminent domain of all or any
portion thereof; and (vi) all rents, issues and profits or other amounts due
Mortgagor in respect thereof (collectively, the "Mortgaged Property"). This
Mortgage is made subject to all restrictions and easements of record, current
taxes and assessments.
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1. This Mortgage secures the payment of principal in the amount of Nine
Million Dollars ($9,000,000), together with all interest thereon and any other
amounts now or hereafter owing from Mortgagor to Mortgagee hereunder, under the
Note or the Agreement, and under the Security Agreement and the Assignment and
all other agreements entered into by Mortgagee and Mortgagor in connection
herewith and therewith, and the performance of all other obligations of
Mortgagor hereunder and thereunder (collectively, the "Obligations").
2. Mortgagor represents and warrants to Mortgagee that Mortgagor (i) is
lawfully seized with good and marketable title, in fee simple, to the real
property included in the Mortgaged Property and has good title to all personal
property included in the Mortgaged Property, subject only to Permitted
Encumbrances (defined herein); (ii) has full right and authority to grant the
interests to Mortgagee as provided herein; and (iii) will warrant and defend to
Mortgagee such title to the Mortgaged Property and the lien and interest of
Mortgagee therein and thereon against all claims and demands whatsoever and
will, except as otherwise herein expressly provided, maintain the priority of
the lien of, and the security interest granted by, this Mortgage upon the
Mortgaged Property until Mortgagor shall be entitled to defeasance as provided
herein.
3. Mortgagor, at its expense, shall cause this Mortgage, any
instruments supplemental hereto, financing statements, including all necessary
amendments, supplements and appropriate continuation statements to be recorded,
registered and filed, and to be kept recorded, registered and filed, in such
manner and in such places as may be required in order to establish, preserve and
protect the lien of this Mortgage as a valid mortgage lien, subject only to
Permitted Encumbrances (defined herein).
4. All property of every kind acquired by Mortgagor after the date
hereof, which by the terms hereof is intended to be subject to the lien of this
Mortgage, shall immediately upon the acquisition thereof by Mortgagor, and
without further mortgage, conveyance or assignment, become subject to the lien
of this Mortgage as fully as though now owned by Mortgagor and specifically
described herein. Nevertheless, Mortgagor shall take such actions and execute
and deliver such additional instruments as Mortgagee shall reasonably require to
further evidence or confirm the subjection to the lien of this Mortgage of any
such property.
5. Mortgagor shall not sell, rent, convey, assign or transfer the
Mortgaged Property or any part or interest therein without the prior written
consent of Mortgagee, which shall not be unreasonably withheld. Mortgagor shall
not directly or indirectly create or permit to remain, and will promptly
discharge, any mortgage, lien, encumbrance or charge on, pledge of, security
interest in or conditional sale or other title retention agreement with respect
to the Mortgaged Property or any part thereof or the interest of Mortgagor or
Mortgagee therein or any revenues, income or profit or other sums arising from
the Mortgaged Property or any part thereof, (including, without limitation, any
lien, encumbrance or charge arising by operation of law) other than: (i) the
lien of this Mortgage and any other liens or rights of Mortgagee granted in any
of the Loan Documents; (ii) the
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lien of any lender identified in EXHIBIT A (the "Senior Lender"); (iii) liens
for taxes, assessments and other governmental charges which are not at the time
required to be paid; (iv) liens of mechanics, materialmen, suppliers or vendors
or rights thereto for amounts which at the time are not required to be paid; and
(v) purchase money security interests in property purchased on credit or with
borrowed money and which secures the repayment of such credit or borrowed money
(collectively, the "Permitted Encumbrances").
6. This Mortgage is also a security agreement and creates a security
interest in and to the Mortgaged Property to secure payment and performance of
the Obligations. Mortgagor has executed and delivered to Mortgagee a Security
Agreement, dated as of even date herewith. To the extent the Mortgaged Property
is covered by both this Mortgage and said Security Agreement, the provisions of
both shall apply, but in the event of a conflict, the provisions of this
Mortgage shall govern as to all portions of the Mortgage Property as constitutes
real property and fixtures and interests therein, and the provisions of the
Security Agreement shall govern as to all portions of the Mortgaged Property as
constitutes personal property.
7. This Mortgage is intended to be effective under the Uniform
Commercial Code as a financing statement filed as a fixture filing, and, in
compliance therewith, the following information is set forth:
(a) The name and address of the record owner/debtor is:
Xxxxx X. Xxxxxxx
0000 Xxxx Xxxx
Xxxxxxx Xxxxx, Xxxx 00000
(b) The name and address of the secured party is:
Advanced Lighting Technologies, Inc.
00000 Xxxxxx Xxxx
Xxxxx, Xxxx 00000
(c) The property covered hereby is described in detail in
EXHIBIT A, attached hereto.
8. Mortgagor hereby authorizes and empowers Mortgagee, at its option,
to do all things authorized or required to be done by Mortgagee, as a mortgagee,
under the laws of the state of Florida and, if different, the state in which the
Mortgaged Property is located, to protect its interests in the Mortgaged
Property.
9. Nothing contained in this Mortgage shall constitute any request by
Mortgagee, express or implied, for the performance of any labor or services or
the furnishing of any materials or other property in respect of the Mortgaged
Property or any
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47
part thereof, or be construed to give Mortgagor any right, power or authority to
contract for or permit the performance of any labor or services or the
furnishing of any materials or other property in such fashion as would provide
the basis for any claim either against Mortgagee or that any lien based on the
performance of such labor or services or the furnishing of any such materials or
other property is prior to the lien of this Mortgage.
10. Without affecting the liability of any other person liable for the
payment of any obligation herein mentioned, and 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 all unpaid obligations,
Mortgagee may, from time to time and without notice, (a) release any person so
liable; (b) extend the maturity or alter any of the terms of any such
obligation; (c) grant other indulgences; (d) 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; (e) take or release any other or additional
security for any obligation herein mentioned; or (f) make compositions or other
arrangements with debtors in relation thereto.
11. Mortgagor shall pay promptly when due, and before penalty or
interest accrue thereon, all taxes, assessments, whether general or special, all
other governmental charges and all public or private utility charges of any kind
whatsoever foreseen or unforeseen, ordinary or extraordinary that now or may at
any time hereafter be assessed, levied or imposed against or with respect to the
Mortgaged Property or any part thereof which, if not paid, may become or be made
a lien on the Mortgaged Property, or any part thereof.
12. Mortgagor shall keep the real and personal property included in the
Mortgaged Property continuously insured with risk and liability insurance in
such amounts as Mortgagee reasonably requires. All insurance shall be obtained
and maintained either by means of policies with generally recognized,
responsible insurance companies. Mortgagor shall furnish Mortgagee with a
certificate of insurance for each policy setting forth the coverage, the limits
of liability, the name of the carrier, the policy number and the expiration
date. Each policy of insurance shall be written so as not to be subject to
cancellation or substantial modification which phrase shall include any
reduction in the scope or limits of coverage upon less than thirty (30) days
advance written notice to Mortgagee. All policies of insurance shall contain
standard mortgage clauses requiring all proceeds resulting from any claim for
loss or damage to be paid to Mortgagee.
13. Mortgagor, at its expense, shall comply with all laws with respect
to the Mortgaged Property, and shall keep (or cause to be kept) the Mortgaged
Property in good order and condition (ordinary wear and tear excepted) and shall
make or cause to be made all necessary or appropriate repairs, replacements and
renewals thereof, interior, exterior, structural and non-structural, ordinary
and extraordinary, foreseen and unforeseen unless Mortgagee otherwise consents
in writing. Mortgagor shall not do, or permit to be done, any act or thing which
might materially impair the value or usefulness of the Mortgaged Property or any
part thereof, shall not commit or permit any waste of the Mortgaged
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48
Property or any part thereof, and shall not permit any unlawful use or
occupation of the Mortgaged Property or any part thereof.
14. Mortgagor further covenants and agrees with Mortgagee that neither
Mortgagor nor any of its agents, employees, independent contractors, invitees,
licensees, successors, assignees, tenants or subtenants will store, release or
dispose of or permit the storage, release or disposal of any hazardous or toxic
substances or hazardous waste on the Mortgaged Property at any time from and
after the effective date of this Mortgage ("Environmental Issues").
15. Mortgagor will protect, indemnify and save harmless Mortgagee from
and against all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation, reasonable attorneys'
fees and expenses as may be limited by law or judicial order or decision entered
in any action brought to recover monies under this Section) imposed upon,
incurred by or asserted against Mortgagee by reason of (a) ownership of any
interest in the Mortgaged Property or any part thereof; (b) any accident, injury
to or death of persons or loss of or damage to property occurring on or about
the Mortgaged Property or any part thereof or the adjoining sidewalks, curbs,
vaults and vault space, if any, streets or ways; (c) any use, disuse or
condition of the Mortgaged Property or any part thereof, or the adjoining
sidewalks, curbs, vaults and vault space, if any, streets or ways, including any
Environmental Issues; (d) any failure on the part of Mortgagor to perform or
comply with any of the terms hereof; (e) any necessity to defend any of the
rights, title or interest conveyed by this Mortgage; or (f) the performance of
any labor or services or the furnishing of any materials or other property in
respect of the Mortgaged Property or any part thereof.
16. In case of any damage to or destruction of any buildings, fixtures
or personal property included in the Mortgaged Property, or any part thereof,
Mortgagor will promptly give written notice thereof to Mortgagee generally
describing the nature and extent of such damage or destruction. Any insurance or
other proceeds from any such damage or destruction shall be paid to Mortgagee,
unless Mortgagee otherwise consents in writing to Mortgagor's use of such
proceeds to repair or replace the damaged or destroyed property, which consent
will not be unreasonably withheld.
17. If title to or the temporary use of the Mortgaged Property, or any
part thereof, shall be taken under the exercise of the power of eminent domain
by any governmental body or by any person, firm or corporation acting under any
governmental body or by any person, firm or corporation acting under
governmental authority, Mortgagor will promptly give written notice thereof to
Mortgagee describing the nature and extent of such taking. Any proceeds received
from any award made in such eminent domain proceedings shall be paid to
Mortgagee.
18. If Mortgagor shall fail to make any payment or perform any act
required to be made or performed hereunder or under the Agreement or the Note,
Mortgagee, without notice or demand upon Mortgagor and without waiving or
releasing any obligation or
Page 5 of 10
49
default, may, but shall be under no obligation to, make such payment or perform
such act for the account and at the expense of Mortgagor and may enter upon the
Mortgaged Property or any part thereof for such purpose and take all such action
thereon as, in its sole opinion, may be necessary or appropriate therefor. All
payments so made by Mortgagee and all costs, fees and expenses incurred in
connection therewith or in connection with the performance by Mortgagee of any
such act, together with interest thereon at eight percent (8%) per annum shall,
together with such interest, be additional indebtedness secured by this Mortgage
and shall be paid by Mortgagor to Mortgagee on demand. In any action brought to
collect such indebtedness, or to foreclose this Mortgage, Mortgagee shall be
entitled to the recovery of such expenses in such action except as limited by
law or judicial order or decision entered in such proceedings.
19. Any default by Mortgagor of any obligation hereunder, any Default
under the Note, and any Event of Default under the Agreement, the Security
Agreement or the Assignment or any default of any of the other Obligations shall
be an "Event of Default" under this Mortgage.
20. If an Event of Default shall have occurred and be continuing,
Mortgagee, at any time, at its election, may exercise any or all or any
combination of the remedies conferred upon or reserved to it under this
Mortgage, the Agreement, the Note, the Security Agreement, the Assignment, or
any instrument collateral thereto, or now or hereafter existing at law, or in
equity or by statute. Without limitation, Mortgagee may (a) declare the entire
unpaid principal balance of the Note and all other indebtedness secured hereby
immediately due and payable, without notice or demand, the same being expressly
waived by Mortgagor, subject to any cure periods provided for in the Note for
non-monetary defaults; (b) proceed at law or equity to collect all indebtedness
secured by this Mortgage due hereunder, whether at maturity or by acceleration;
(c) foreclose the lien of this Mortgage as against all or any part of the
Mortgaged Property; and (d) exercise any rights, powers and remedies it may have
as a secured party under the Uniform Commercial Code, or other similar laws in
effect, including, without limitation, the option of proceeding as to both
personal property and fixtures in accordance with Mortgagee's rights with
respect to real property.
21. Mortgagor does hereby waive to the full extent it may lawfully do
so, the benefit of all appraisement, valuation, stay and extension laws now or
hereafter in force and all rights of marshaling of assets in the event of any
sale of the Mortgaged Property, any part thereof or any interest therein and any
court having jurisdiction to foreclose the lien thereof may sell the Mortgaged
Property in part or as an entirety.
22. All amounts (including, without limitation, the proceeds of any
sale of the Mortgaged Property, any part thereof or any interest therein)
received by Mortgagee hereunder shall be applied to amounts due to it from
Mortgagor hereunder and under the Note, the Agreement, the Security Agreement,
the Assignment, and the other Obligations, and shall be applied as follows:
Page 6 of 10
50
First: the payment of all costs incurred in the collection thereof
(including, without limitation, reasonable attorneys' fees and expenses except
as may have been limited by law or by judicial order or decision entered in any
action to foreclose this Mortgage);
Second: the payment of indebtedness secured by this Mortgage owing to
Mortgagee, other than indebtedness with respect to the Note at the time
outstanding; and
Third: the payment to Mortgagee for the payment of all amounts payable
under the Note in the order provided for therein.
23. Each right, power and remedy of Mortgagee, provided for in this
Mortgage, in the Agreement, the Note, the Security Agreement, the Assignment, or
now or hereafter existing at law or in equity or by statute or otherwise, shall
be cumulative and concurrent and shall be in addition to every other right,
power or remedy provided for in this Mortgage, in the Agreement, the Note, the
Security Agreement, the Assignment, or now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the exercise
or partial exercise by Mortgagee of any one or more of such rights, powers or
remedies shall not preclude the simultaneous or later exercise by Mortgagee of
any or all such other rights, powers or remedies.
24. All rights, powers and remedies provided herein may be exercised
only to the extent that the exercise thereof does not violate any applicable
law, and are intended to be limited to the extent necessary so that they will
not render this Mortgage invalid, unenforceable or not entitled to be recorded,
registered or filed under any applicable law.
25. No failure by Mortgagee to insist upon the strict performance of
any term hereof or to exercise any right, power or remedy consequent upon an
Event of Default, shall constitute a waiver of any such term or of any such
Event of Default. No waiver of any Event of Default shall affect or alter this
Mortgage, which shall continue in full force, and shall not effect a waiver with
respect to any subsequent such Event of Default or to any other then existing or
subsequent breach.
26. In case Mortgagee shall have proceeded to enforce any right, power
or remedy under this Mortgage by foreclosure, entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason, or shall
have been determined adversely to Mortgagee, then and in every case Mortgagor
and Mortgagee shall be restored to their former positions and rights hereunder,
and all rights, power and remedies of Mortgagee shall continue as if no such
proceeding had been taken.
27. Mortgagee shall have no liability for any loss, damage, injury,
cost or expense resulting from any act or omission to act by it or its
representatives whether or not negligent, which was taken or omitted pursuant to
this Mortgage.
28. Without notice to or consent of Mortgagor and without impairment of
the lien and rights created by this Mortgage, Mortgagee may accept from
Mortgagor or from any
Page 7 of 10
51
other person or persons, additional security for the indebtedness secured by
this Mortgage. Neither the giving of this Mortgage nor the acceptance of any
such additional security shall prevent Mortgagee from resorting first to such
additional security or to the security created by this Mortgage, in either case
without affecting the lien hereof and the rights conferred hereunder.
29. If all sums then due and payable under this Mortgage, the Note and
the Agreement by Mortgagor shall have been paid and Mortgagor shall have
complied with all the terms, conditions and requirements hereof and thereof,
then this Mortgage shall be null and void and of no further force and effect.
Upon the written request and at the expense of Mortgagor, Mortgagee will execute
and deliver such proper instruments of release and discharge as may reasonably
be requested to evidence such defeasance, release and discharge.
30. Mortgagee and its representatives are hereby authorized to enter
upon and inspect the Mortgaged Property at reasonable times, and so long as
Mortgagee does not unreasonably interfere with Mortgagor's use and enjoyment of
the Mortgaged Property.
31. Mortgagor shall, to the extent permitted by law, immediately upon
demand pay or reimburse Mortgagee for all reasonable attorneys' fees, costs and
expenses incurred by Mortgagee in any proceedings involving the estate of a
decedent, an insolvent or a debtor under federal bankruptcy law, or in any
action, proceeding or dispute of any kind in which Mortgagee is made a party, or
appears as an intervener or party plaintiff or defendant, affecting or relating
to the Note, this Mortgage or the Agreement, the Security Agreement, the
Assignment, Mortgagor or any of the Mortgaged Property, including, but not
limited to, the foreclosure of this Mortgage, any condemnation action involving
the Mortgaged Property, or any action to protect the security hereof, and any
such amounts paid by Mortgagee shall, except as may be limited by law or
judicial order or decision entered in any action to foreclose this Mortgage, be
added to the indebtedness secured hereby and secured by the lien and security
interest of this Mortgage and shall bear interest at eight percent (8%) per
annum.
32. It being the desire and intention of the parties hereto that this
Mortgage and the lien created hereby do not merge in fee simple title to the
Mortgaged Property, it is hereby understood and agreed that should Mortgagee
acquire any additional or other interests in or to the Mortgaged Property or the
ownership thereof, then, unless a contrary intent is manifested by Mortgagee as
evidence by an appropriate document duly recorded, this Mortgage and the lien
hereof shall not merge in the fee simple title, toward the end that this
Mortgage may be foreclosed as if owned by a stranger to the fee simple title.
33. This Mortgage shall be deemed to be made under the laws of the
state of Ohio and for all purposes shall be governed by and construed in
accordance with the laws of Ohio without regard to conflict of laws principals
(except to the extent the Mortgaged Property is situated in a state other than
Ohio and in that case any laws of such state which are required to control
mortgages granted on such property shall apply) and shall
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52
inure to the benefit of and be binding upon Mortgagor and his estate, heirs,
executors, administrators and personal representatives, successors and assigns
and Mortgagee and its successors and assigns. If any term or provision of this
Mortgage shall be held to be invalid, illegal or unenforceable, the validity of
the remaining provisions hereof shall in no way be affected thereby. The
captions or headings herein shall be solely for convenience of reference and in
no way define, limit or describe the scope or intent of any provisions or
sections of this Mortgage. This Mortgage may be executed in any number of
counterparts, each of which shall be regarded as an original and all of which
shall constitute but one and the same instrument; it shall not be necessary in
proving this Mortgage to produce or account for more than one such counterpart.
34. This Mortgage may not be effectively amended, changed, modified,
altered or terminated except as provided herein without the prior written
consent of Mortgagor and Mortgagee.
35. All sums payable by Mortgagor hereunder shall be paid without
notice, demand, counterclaims, setoff, deduction or defense, and without
abatement, suspension, deferment, diminution or reduction, and the obligations
and liabilities of Mortgagor hereunder shall in no way be released, discharged
or otherwise affected (except as expressly provided herein) by reason of (a) any
damage to or destruction of or any condemnation or similar taking of the
Mortgaged Property or any part thereof; (b) any restriction or prevention of or
interference with any use of the Mortgaged Property or any part thereof; (d) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to Mortgagor or any action taken
with respect to this Mortgage by any trustee or receiver of Mortgagor, or by any
court in such proceeding; (e) any claim which Mortgagor has or might have
against Mortgagee; (f) any default or failure on the part of Mortgagee to
perform or comply with any of the terms hereof or of any other agreements
pertaining to the loan on the Mortgaged Property with Mortgagor; or (g) any
other occurrence whatsoever, whether similar or dissimilar to the foregoing,
whether or not Mortgagor shall have notice or knowledge of any of the foregoing.
Except as expressly provided herein, Mortgagor waives all rights now or
hereafter conferred by statute or otherwise to any abatement, suspension,
deferment, diminution or reduction of any sum secured hereby and payable by
Mortgagor.
36. All notices, certificates, requests or other communications
hereunder shall be in writing and shall be deemed to be sufficiently given when
mailed by registered or certified mail, postage prepaid, and addressed to the
addresses set forth in the granting clause. Mortgagor and Mortgagee may, by
notice given hereunder, designate any further or different addresses to which
subsequent notices, certificates, requests or other communications shall be
sent.
37. In the event of litigation concerning this document or any related
document(s), all costs, charges and expenses, including reasonable attorneys'
fees, shall be awarded to the prevailing party. As used herein and all related
loan documents, attorneys' fees shall include, but not be limited to, fees
incurred in all matters of collection
Page 9 of 10
53
and enforcement, construction and interpretation, before, during or after trial,
proceedings and appeals, as well as appearances connected with bankruptcy
proceedings.
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the date
written below.
Signed and Acknowledged
in the Presence of: MORTGAGOR:
------------------------------ --------------------------------
XXXXX X. XXXXXXX
______________________________ Date:____________________________
I hereby release all of my dower rights in the Mortgaged Property.
Signed and Acknowledged
in the Presence of:
------------------------------ --------------------------------
XXXXX XXXXXXX
______________________________ Date:____________________________
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
The foregoing instrument was executed before me this ____ day of
February, 1999, by Xxxxx X. Xxxxxxx and Xxxxx Xxxxxxx who are personally known
to me and who did swear that the same was done of their own free will.
-------------------------------
Notary Public
Prepared by:
Xxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxx Xxxxxx LLP
000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
(000) 000-0000
Page 10 of 10
54
EXHIBIT A - MORTGAGED PROPERTY
REAL ESTATE MORTGAGE
XXXXX X. XXXXXXX / ADVANCED LIGHTING TECHNOLOGIES, INC.
PROPERTY ADDRESS: 00000 Xxxxxx Xxxxx Xxxxx
Xxxxxx Xxxxxxx, Xxxxxxx 00000-0000
PARCEL NUMBER: 47-25-32-09-0000C-003
SENIOR LENDER: First Union National Bank of Florida
LEGAL DESCRIPTION: XXX 0, XXXXX X, XXXXXX XXX XXXX 00, according
to the map or plat thereof, as recorded in
Plat Book 45, Pages 44 through 51,
inclusive, Public Records of Xxx County,
Florida
55
EXHIBIT B - TAX CALCULATION
REAL ESTATE MORTGAGE
XXXXX X. XXXXXXX / ADVANCED LIGHTING TECHNOLOGIES, INC.
Loan Amount $9,000,000
Value of Florida Real Property Collateral (equity)
Owed in Fee Encumbered by this Instrument $400,000
Value of Florida Personal Property Collateral $25,000
Value of Non-Florida Real Property Collateral
(whether owned in fee or held in leasehold) $3,575,000
Value of Non-Florida Personal Property Collateral $600,000
56
REAL ESTATE MORTGAGE
Filed for record in ______ County, ______ on
February ____, 1999, ______ o'clock _.m., E.D.T.
No. _______________ and recorded at
Volume ______, Page _______,
______ County, ______, Mortgage Records
As an inducement to and in consideration of the loan to the
undersigned, XXXXX X. XXXXXXX ("Mortgagor"), having his principal residence at
0000 Xxxx Xxxx, Xxxxxxx Xxxxx, Xxxx 00000 by ADVANCED LIGHTING TECHNOLOGIES,
INC., ("Mortgagee"), an Ohio corporation having its principal offices at 00000
Xxxxxx Xxxx, Xxxxx, Xxxx 00000, pursuant to the Loan Agreement dated as of
October 8, 1998, by and between Mortgagor and Mortgagee (the "Agreement") and
evidenced by the Secured Promissory Note dated as of October 8, 1998, with a
maturity date of October 6, 1999, made by Mortgagor to Mortgagee (the "Note"),
and further evidenced by the Security Agreement and the Collateral Assignment of
Contract, both dated as of October 8, 1998, by and between Mortgagor and
Mortgagee (respectively, the "Security Agreement" and the "Assignment"), and for
other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Mortgagor hereby grants, bargains, sells, conveys, mortgages,
assigns and grants a security interest in and transfers unto Mortgagee, its
successors and assigns, to have and to hold forever, all right, title and
interest of Mortgagor in and to the real property described in EXHIBIT A,
together with all other real properties now or hereafter made subject to the
lien of this Mortgage by supplemental mortgage or otherwise, and (i) in and to
the buildings and other improvements now or hereafter situated thereon; (ii) all
privileges and appurtenances thereto; (iii) all fixtures now or hereafter
attached to and used in connection therewith; (iv) all renewals or replacements
thereof or articles in substitution therefor; (v) all proceeds of any of the
foregoing or from any insurance payable with respect thereto (from whatever
source), or payments from any taking under power of eminent domain of all or any
portion thereof; and (vi) all rents, issues and profits or other amounts due
Mortgagor in respect thereof (collectively, the "Mortgaged Property"). This
Mortgage is made subject to all restrictions and easements of record, current
taxes and assessments.
1. This Mortgage secures the payment of principal in the amount of Nine
Million Dollars ($9,000,000), together with all interest thereon and any other
amounts now or hereafter owing from Mortgagor to Mortgagee hereunder, under the
Note or the Agreement, and under the Security Agreement and the Assignment and
all other agreements entered into by Mortgagee and Mortgagor in connection
herewith and therewith, and the performance of all other obligations of
Mortgagor hereunder and thereunder (collectively, the "Obligations").
Page 1 of 11
57
2. Mortgagor represents and warrants to Mortgagee that Mortgagor (i) is
lawfully seized with good and marketable title, in fee simple, to the real
property included in the Mortgaged Property and has good title to all personal
property included in the Mortgaged Property, subject only to Permitted
Encumbrances (defined herein); (ii) has full right and authority to grant the
interests to Mortgagee as provided herein; and (iii) will warrant and defend to
Mortgagee such title to the Mortgaged Property and the lien and interest of
Mortgagee therein and thereon against all claims and demands whatsoever and
will, except as otherwise herein expressly provided, maintain the priority of
the lien of, and the security interest granted by, this Mortgage upon the
Mortgaged Property until Mortgagor shall be entitled to defeasance as provided
herein.
3. Mortgagor, at its expense, shall cause this Mortgage, any
instruments supplemental hereto, financing statements, including all necessary
amendments, supplements and appropriate continuation statements to be recorded,
registered and filed, and to be kept recorded, registered and filed, in such
manner and in such places as may be required in order to establish, preserve and
protect the lien of this Mortgage as a valid mortgage lien, subject only to
Permitted Encumbrances (defined herein).
4. All property of every kind acquired by Mortgagor after the date
hereof, which by the terms hereof is intended to be subject to the lien of this
Mortgage, shall immediately upon the acquisition thereof by Mortgagor, and
without further mortgage, conveyance or assignment, become subject to the lien
of this Mortgage as fully as though now owned by Mortgagor and specifically
described herein. Nevertheless, Mortgagor shall take such actions and execute
and deliver such additional instruments as Mortgagee shall reasonably require to
further evidence or confirm the subjection to the lien of this Mortgage of any
such property.
5. Mortgagor shall not sell, rent, convey, assign or transfer the
Mortgaged Property or any part or interest therein without the prior written
consent of Mortgagee, which shall not be unreasonably withheld. Mortgagor shall
not directly or indirectly create or permit to remain, and will promptly
discharge, any mortgage, lien, encumbrance or charge on, pledge of, security
interest in or conditional sale or other title retention agreement with respect
to the Mortgaged Property or any part thereof or the interest of Mortgagor or
Mortgagee therein or any revenues, income or profit or other sums arising from
the Mortgaged Property or any part thereof, (including, without limitation, any
lien, encumbrance or charge arising by operation of law) other than: (i) the
lien of this Mortgage and any other liens or rights of Mortgagee granted in any
of the Loan Documents; (ii) the lien of any lender identified in EXHIBIT A (the
"Senior Lender"); (iii) liens for taxes, assessments and other governmental
charges which are not at the time required to be paid; (iv) liens of mechanics,
materialmen, suppliers or vendors or rights thereto for amounts which at the
time are not required to be paid; and (v) purchase money security interests in
property purchased on credit or with borrowed money and which secures the
repayment of such credit or borrowed money (collectively, the "Permitted
Encumbrances")
Page 2 of 11
58
6. This Mortgage is also a security agreement and creates a security
interest in and to the Mortgaged Property to secure payment and performance of
the Obligations. Mortgagor has executed and delivered to Mortgagee a Security
Agreement, dated as of even date herewith. To the extent the Mortgaged Property
is covered by both this Mortgage and said Security Agreement, the provisions of
both shall apply, but in the event of a conflict, the provisions of this
Mortgage shall govern as to all portions of the Mortgage Property as constitutes
real property and fixtures and interests therein, and the provisions of the
Security Agreement shall govern as to all portions of the Mortgaged Property as
constitutes personal property.
7. This Mortgage is intended to be effective under the Uniform
Commercial Code as a financing statement filed as a fixture filing, and, in
compliance therewith, the following information is set forth:
(a) The name and address of the record owner/debtor is:
Xxxxx X. Xxxxxxx
0000 Xxxx Xxxx
Xxxxxxx Xxxxx, Xxxx 00000
(b) The name and address of the secured party is:
Advanced Lighting Technologies, Inc.
00000 Xxxxxx Xxxx
Xxxxx, Xxxx 00000
(c) The property covered hereby is described in detail in
EXHIBIT A, attached hereto.
8. Mortgagor hereby authorizes and empowers Mortgagee, at its option,
to do all things authorized or required to be done by Mortgagee, as a mortgagee,
under the laws of the state of Ohio and, if different, the state in which the
Mortgaged Property is located, to protect its interests in the Mortgaged
Property.
9. Nothing contained in this Mortgage shall constitute any request by
Mortgagee, express or implied, for the performance of any labor or services or
the furnishing of any materials or other property in respect of the Mortgaged
Property or any part thereof, or be construed to give Mortgagor any right, power
or authority to contract for or permit the performance of any labor or services
or the furnishing of any materials or other property in such fashion as would
provide the basis for any claim either against Mortgagee or that any lien based
on the performance of such labor or services or the furnishing of any such
materials or other property is prior to the lien of this Mortgage.
Page 3 of 11
59
10. Without affecting the liability of any other person liable for the
payment of any obligation herein mentioned, and 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 all unpaid obligations,
Mortgagee may, from time to time and without notice (a) release any person so
liable; (b) extend the maturity or alter any of the terms of any such
obligation; (c) grant other indulgences; (d) 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; (e) take or release any other or additional
security for any obligation herein mentioned; or (f) make compositions or other
arrangements with debtors in relation thereto.
11. Mortgagor shall pay promptly when due, and before penalty or
interest accrue thereon, all taxes, assessments, whether general or special, all
other governmental charges and all public or private utility charges of any kind
whatsoever foreseen or unforeseen, ordinary or extraordinary that now or may at
any time hereafter be assessed, levied or imposed against or with respect to the
Mortgaged Property or any part thereof which, if not paid, may become or be made
a lien on the Mortgaged Property, or any part thereof.
12. Mortgagor shall keep the real and personal property included in the
Mortgaged Property continuously insured with risk and liability insurance in
such amounts as Mortgagee reasonably requires. All insurance shall be obtained
and maintained either by means of policies with generally recognized,
responsible insurance companies. Mortgagor shall furnish Mortgagee with a
certificate of insurance for each policy setting forth the coverage, the limits
of liability, the name of the carrier, the policy number and the expiration
date. Each policy of insurance shall be written so as not to be subject to
cancellation or substantial modification which phrase shall include any
reduction in the scope or limits of coverage upon less than thirty (30) days
advance written notice to Mortgagee. All policies of insurance shall contain
standard mortgage clauses requiring all proceeds resulting from any claim for
loss or damage to be paid to Mortgagee.
13. Mortgagor, at its expense, shall comply with all laws with respect
to the Mortgaged Property, and shall keep (or cause to be kept) the Mortgaged
Property in good order and condition (ordinary wear and tear excepted) and shall
make or cause to be made all necessary or appropriate repairs, replacements and
renewals thereof, interior, exterior, structural and non-structural, ordinary
and extraordinary, foreseen and unforeseen unless Mortgagee otherwise consents
in writing. Mortgagor shall not do, or permit to be done, any act or thing which
might materially impair the value or usefulness of the Mortgaged Property or any
part thereof, shall not commit or permit any waste of the Mortgaged Property or
any part thereof, and shall not permit any unlawful use or occupation of the
Mortgaged Property or any part thereof.
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14. Mortgagor further covenants and agrees with Mortgagee that neither
Mortgagor nor any of its agents, employees, independent contractors, invitees,
licensees, successors, assignees, tenants or subtenants will store, release or
dispose of or permit the storage, release or disposal of any hazardous or toxic
substances or hazardous waste on the Mortgaged Property at any time from and
after the effective date of this Mortgage ("Environmental Issues").
15. Mortgagor will protect, indemnify and save harmless Mortgagee from
and against all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation, reasonable attorneys'
fees and expenses as may be limited by law or judicial order or decision entered
in any action brought to recover monies under this Section) imposed upon,
incurred by or asserted against Mortgagee by reason of (a) ownership of any
interest in the Mortgaged Property or any part thereof; (b) any accident, injury
to or death of persons or loss of or damage to property occurring on or about
the Mortgaged Property or any part thereof or the adjoining sidewalks, curbs,
vaults and vault space, if any, streets or ways; (c) any use, disuse or
condition of the Mortgaged Property or any part thereof, or the adjoining
sidewalks, curbs, vaults and vault space, if any, streets or ways, including any
Environmental Issues; (d) any failure on the part of Mortgagor to perform or
comply with any of the terms hereof; (e) any necessity to defend any of the
rights, title or interest conveyed by this Mortgage; or (f) the performance of
any labor or services or the furnishing of any materials or other property in
respect of the Mortgaged Property or any part thereof.
16. In case of any damage to or destruction of any buildings, fixtures
or personal property included in the Mortgaged Property, or any part thereof,
Mortgagor will promptly give written notice thereof to Mortgagee generally
describing the nature and extent of such damage or destruction. Any insurance or
other proceeds from any such damage or destruction shall be paid to Mortgagee,
unless Mortgagee otherwise consents in writing to Mortgagor's use of such
proceeds to repair or replace the damaged or destroyed property, which consent
will not be unreasonably withheld.
17. If title to or the temporary use of the Mortgaged Property, or any
part thereof, shall be taken under the exercise of the power of eminent domain
by any governmental body or by any person, firm or corporation acting under any
governmental body or by any person, firm or corporation acting under
governmental authority, Mortgagor will promptly give written notice thereof to
Mortgagee describing the nature and extent of such taking. Any proceeds received
from any award made in such eminent domain proceedings shall be paid to
Mortgagee.
18. If Mortgagor shall fail to make any payment or perform any act
required to be made or performed hereunder or under the Agreement or the Note,
Mortgagee, without notice or demand upon Mortgagor and without waiving or
releasing any obligation or default, may, but shall be under no obligation to,
make such payment or perform such act
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for the account and at the expense of Mortgagor and may enter upon the
Mortgaged Property or any part thereof for such purpose and take all such
action thereon as, in its sole opinion, may be necessary or appropriate
therefor. All payments so made by Mortgagee and all costs, fees and expenses
incurred in connection therewith or in connection with the performance by
Mortgagee of any such act, together with interest thereon at eight percent (8%)
per annum shall, together with such interest, be additional indebtedness
secured by this Mortgage and shall be paid by Mortgagor to Mortgagee on demand.
In any action brought to collect such indebtedness, or to foreclose this
Mortgage, Mortgagee shall be entitled to the recovery of such expenses in such
action except as limited by law or judicial order or decision entered in such
proceedings.
19. Any default by Mortgagor of any obligation hereunder, any Default
under the Note, and any Event of Default under the Agreement, the Security
Agreement or the Assignment or any default of any of the other Obligations shall
be an "Event of Default" under this Mortgage.
20. If an Event of Default shall have occurred and be continuing,
Mortgagee, at any time, at its election, may exercise any or all or any
combination of the remedies conferred upon or reserved to it under this
Mortgage, the Agreement, the Note, the Security Agreement, the Assignment or any
instrument collateral thereto, or now or hereafter existing at law, or in equity
or by statute. Without limitation, Mortgagee may (a) declare the entire unpaid
principal balance of the Note and all other indebtedness secured hereby
immediately due and payable, without notice or demand, the same being expressly
waived by Mortgagor, subject to any cure periods provided for in the Note for
non-monetary defaults; (b) proceed at law or equity to collect all indebtedness
secured by this Mortgage due hereunder, whether at maturity or by acceleration;
(c) foreclose the lien of this Mortgage as against all or any part of the
Mortgaged Property; and (d) exercise any rights, powers and remedies it may have
as a secured party under the Uniform Commercial Code, or other similar laws in
effect, including, without limitation, the option of proceeding as to both
personal property and fixtures in accordance with Mortgagee's rights with
respect to real property.
21. Mortgagor does hereby waive to the full extent it may lawfully do
so, the benefit of all appraisement, valuation, stay and extension laws now or
hereafter in force and all rights of marshaling of assets in the event of any
sale of the Mortgaged Property, any part thereof or any interest therein and any
court having jurisdiction to foreclose the lien thereof may sell the Mortgaged
Property in part or as an entirety.
22. All amounts (including, without limitation, the proceeds of any
sale of the Mortgaged Property, any part thereof or any interest therein)
received by Mortgagee hereunder shall be applied to amounts due to it from
Mortgagor hereunder and under the Note, the Agreement, the Security Agreement,
the Assignment and the other Obligations, and shall be applied as follows:
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First: the payment of all costs incurred in the collection thereof
(including, without limitation, reasonable attorneys' fees and expenses except
as may have been limited by law or by judicial order or decision entered in any
action to foreclose this Mortgage);
Second: the payment of indebtedness secured by this Mortgage owing to
Mortgagee, other than indebtedness with respect to the Note at the time
outstanding; and
Third: the payment to Mortgagee for the payment of all amounts payable
under the Note in the order provided for therein.
23. Each right, power and remedy of Mortgagee, provided for in this
Mortgage, in the Agreement, the Note, the Security Agreement, the Assignment or
now or hereafter existing at law or in equity or by statute or otherwise, shall
be cumulative and concurrent and shall be in addition to every other right,
power or remedy provided for in this Mortgage, in the Agreement, the Note, the
Security Agreement, the Assignment or now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the exercise
or partial exercise by Mortgagee of any one or more of such rights, powers or
remedies shall not preclude the simultaneous or later exercise by Mortgagee of
any or all such other rights, powers or remedies.
24. All rights, powers and remedies provided herein may be exercised
only to the extent that the exercise thereof does not violate any applicable
law, and are intended to be limited to the extent necessary so that they will
not render this Mortgage invalid, unenforceable or not entitled to be recorded,
registered or filed under any applicable law.
25. No failure by Mortgagee to insist upon the strict performance of
any term hereof or to exercise any right, power or remedy consequent upon an
Event of Default, shall constitute a waiver of any such term or of any such
Event of Default. No waiver of any Event of Default shall affect or alter this
Mortgage, which shall continue in full force, and shall not effect a waiver with
respect to any subsequent such Event of Default or to any other then existing or
subsequent breach.
26. In case Mortgagee shall have proceeded to enforce any right, power
or remedy under this Mortgage by foreclosure, entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason, or shall
have been determined adversely to Mortgagee, then and in every case Mortgagor
and Mortgagee shall be restored to their former positions and rights hereunder,
and all rights, power and remedies of Mortgagee shall continue as if no such
proceeding had been taken.
27. Mortgagee shall have no liability for any loss, damage, injury,
cost or expense resulting from any act or omission to act by it or its
representatives whether or not negligent, which was taken or omitted pursuant to
this Mortgage.
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28. Without notice to or consent of Mortgagor and without impairment of
the lien and rights created by this Mortgage, Mortgagee may accept from
Mortgagor or from any other person or persons, additional security for the
indebtedness secured by this Mortgage. Neither the giving of this Mortgage nor
the acceptance of any such additional security shall prevent Mortgagee from
resorting first to such additional security or to the security created by this
Mortgage, in either case without affecting the lien hereof and the rights
conferred hereunder.
29. If all sums then due and payable under this Mortgage, the Note and
the Agreement by Mortgagor shall have been paid and Mortgagor shall have
complied with all the terms, conditions and requirements hereof and thereof,
then this Mortgage shall be null and void and of no further force and effect.
Upon the written request and at the expense of Mortgagor, Mortgagee will execute
and deliver such proper instruments of release and discharge as may reasonably
be requested to evidence such defeasance, release and discharge.
30. Mortgagee and its representatives are hereby authorized to enter
upon and inspect the Mortgaged Property at reasonable times, and so long as
Mortgagee does not unreasonably interfere with Mortgagor's use and enjoyment of
the Mortgaged Property.
31. Mortgagor shall, to the extent permitted by law, immediately upon
demand pay or reimburse Mortgagee for all reasonable attorneys' fees, costs and
expenses incurred by Mortgagee in any proceedings involving the estate of a
decedent, an insolvent or a debtor under federal bankruptcy law, or in any
action, proceeding or dispute of any kind in which Mortgagee is made a party, or
appears as an intervener or party plaintiff or defendant, affecting or relating
to the Note, this Mortgage or the Agreement, the Security Agreement, the
Assignment, Mortgagor or any of the Mortgaged Property, including, but not
limited to, the foreclosure of this Mortgage, any condemnation action involving
the Mortgaged Property, or any action to protect the security hereof, and any
such amounts paid by Mortgagee shall, except as may be limited by law or
judicial order or decision entered in any action to foreclose this Mortgage, be
added to the indebtedness secured hereby and secured by the lien and security
interest of this Mortgage and shall bear interest at eight percent (8%) per
annum.
32. It being the desire and intention of the parties hereto that this
Mortgage and the lien created hereby do not merge in fee simple title to the
Mortgaged Property, it is hereby understood and agreed that should Mortgagee
acquire any additional or other interests in or to the Mortgaged Property or the
ownership thereof, then, unless a contrary intent is manifested by Mortgagee as
evidence by an appropriate document duly recorded, this Mortgage and the lien
hereof shall not merge in the fee simple title, toward the end that this
Mortgage may be foreclosed as if owned by a stranger to the fee simple title.
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33. This Mortgage shall be deemed to be made under the laws of the
state of Ohio and for all purposes shall be governed by and construed in
accordance with the laws of Ohio without regard to conflict of laws principals
(except to the extent the Mortgaged Property is situated in a state other than
Ohio and in that case any laws of such state which are required to control
mortgages granted on such property shall apply) and shall inure to the benefit
of and be binding upon Mortgagor and his estate, heirs, executors,
administrators and personal representatives, successors and assigns and
Mortgagee and its successors and assigns. If any term or provision of this
Mortgage shall be held to be invalid, illegal or unenforceable, the validity of
the remaining provisions hereof shall in no way be affected thereby. The
captions or headings herein shall be solely for convenience of reference and in
no way define, limit or describe the scope or intent of any provisions or
sections of this Mortgage. This Mortgage may be executed in any number of
counterparts, each of which shall be regarded as an original and all of which
shall constitute but one and the same instrument; it shall not be necessary in
proving this Mortgage to produce or account for more than one such counterpart.
34. This Mortgage may not be effectively amended, changed, modified,
altered or terminated except as provided herein without the prior written
consent of Mortgagor and Mortgagee.
35. All sums payable by Mortgagor hereunder shall be paid without
notice, demand, counterclaims, setoff, deduction or defense, and without
abatement, suspension, deferment, diminution or reduction, and the obligations
and liabilities of Mortgagor hereunder shall in no way be released, discharged
or otherwise affected (except as expressly provided herein) by reason of (a) any
damage to or destruction of or any condemnation or similar taking of the
Mortgaged Property or any part thereof; (b) any restriction or prevention of or
interference with any use of the Mortgaged Property or any part thereof; (d) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to Mortgagor or any action taken
with respect to this Mortgage by any trustee or receiver of Mortgagor, or by any
court in such proceeding; (e) any claim which Mortgagor has or might have
against Mortgagee; (f) any default or failure on the part of Mortgagee to
perform or comply with any of the terms hereof or of any other agreements
pertaining to the loan on the Mortgaged Property with Mortgagor; or (g) any
other occurrence whatsoever, whether similar or dissimilar to the foregoing,
whether or not Mortgagor shall have notice or knowledge of any of the foregoing.
Except as expressly provided herein, Mortgagor waives all rights now or
hereafter conferred by statute or otherwise to any abatement, suspension,
deferment, diminution or reduction of any sum secured hereby and payable by
Mortgagor.
36. All notices, certificates, requests or other communications
hereunder shall be in writing and shall be deemed to be sufficiently given when
mailed by registered or certified mail, postage prepaid, and addressed to the
addresses set forth in the granting clause. Mortgagor and Mortgagee may, by
notice given hereunder, designate any further
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65
or different addresses to which subsequent notices, certificates, requests or
other communications shall be sent.
37. In the event of litigation concerning this document or any related
document(s), all costs, charges and expenses, including reasonable attorneys'
fees, shall be awarded to the prevailing party. As used herein and all related
loan documents, attorneys' fees shall include, but not be limited to, fees
incurred in all matters of collection
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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and enforcement, construction and interpretation, before, during or after trial,
proceedings and appeals, as well as appearances connected with bankruptcy
proceedings.
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the date
written below.
Signed and Acknowledged
in the Presence of: MORTGAGOR:
------------------------------ --------------------------------
XXXXX X. XXXXXXX
______________________________ Date:____________________________
I hereby release all of my dower rights in the Mortgaged Property.
Signed and Acknowledged
in the Presence of:
------------------------------ --------------------------------
XXXXX XXXXXXX
______________________________ Date:____________________________
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
The foregoing instrument was executed before me this ____ day of
February, 1999, by Xxxxx X. Xxxxxxx and Xxxxx Xxxxxxx who are personally known
to me and who did swear that the same was done of their own free will.
-------------------------------
Notary Public
Prepared by:
Xxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxx Xxxxxx LLP
000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
(000) 000-0000
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EXHIBIT A - MORTGAGED PROPERTY
REAL ESTATE MORTGAGE
XXXXX X. XXXXXXX / ADVANCED LIGHTING TECHNOLOGIES, INC.
PROPERTY ADDRESS: 0000 Xxxx Xxxx
Xxxxxxx Xxxxx, Xxxx 00000-0000
PARCEL NUMBER: 02-159150
SENIOR LENDER: Key Bank National Association
LEGAL DESCRIPTION: Situated in the Township of Bainbridge,
County of Geauga, and State of Ohio:
And known as being Sublot No. 34 in
the Stone Ridge Company's Stone
Ridge Colony Allotment of a part of
Original Bainbridge Township Lots
Nos. 39 and 48, Tract No. 1, as
shown by the recorded plat in Volume
7 of Maps, Page 49 of Geauga County
Records, be the same more or less,
but subject to all legal highways.
68
REAL ESTATE MORTGAGE
Filed for record in ______ County, ______ on
February ____, 1999, ______ o'clock _.m., E.D.T.
No. _______________ and recorded at
Volume ______, Page _______,
______ County, ______, Mortgage Records
As an inducement to and in consideration of the loan to the
undersigned, XXXXX X. XXXXXXX ("Mortgagor"), having his principal residence at
0000 Xxxx Xxxx, Xxxxxxx Xxxxx, Xxxx 00000 by ADVANCED LIGHTING TECHNOLOGIES,
INC., ("Mortgagee"), an Ohio corporation having its principal offices at 00000
Xxxxxx Xxxx, Xxxxx, Xxxx 00000, pursuant to the Loan Agreement dated as of
October 8, 1998, by and between Mortgagor and Mortgagee (the "Agreement") and
evidenced by the Secured Promissory Note dated as of October 8, 1998, with a
maturity date of October 6, 1999, made by Mortgagor to Mortgagee (the "Note"),
and further evidenced by the Security Agreement and the Collateral Assignment of
Contract, both dated as of October 8, 1998, by and between Mortgagor and
Mortgagee (respectively, the "Security Agreement" and the "Assignment"), and for
other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Mortgagor hereby grants, bargains, sells, conveys, mortgages,
assigns and grants a security interest in and transfers unto Mortgagee, its
successors and assigns, to have and to hold forever, all right, title and
interest of Mortgagor in and to the real property described in EXHIBIT A,
together with all other real properties now or hereafter made subject to the
lien of this Mortgage by supplemental mortgage or otherwise, and (i) in and to
the buildings and other improvements now or hereafter situated thereon; (ii) all
privileges and appurtenances thereto; (iii) all fixtures now or hereafter
attached to and used in connection therewith; (iv) all renewals or replacements
thereof or articles in substitution therefor; (v) all proceeds of any of the
foregoing or from any insurance payable with respect thereto (from whatever
source), or payments from any taking under power of eminent domain of all or any
portion thereof; and (vi) all rents, issues and profits or other amounts due
Mortgagor in respect thereof (collectively, the "Mortgaged Property"). This
Mortgage is made subject to all restrictions and easements of record, current
taxes and assessments.
1. This Mortgage secures the payment of principal in the amount of Nine
Million Dollars ($9,000,000), together with all interest thereon and any other
amounts now or hereafter owing from Mortgagor to Mortgagee hereunder, under the
Note or the Agreement, and under the Security Agreement and the Assignment and
all other agreements entered into by Mortgagee and Mortgagor in connection
herewith and therewith, and the performance of all other obligations of
Mortgagor hereunder and thereunder (collectively, the "Obligations").
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2. Mortgagor represents and warrants to Mortgagee that Mortgagor (i) is
lawfully seized with good and marketable title, in fee simple, to the real
property included in the Mortgaged Property and has good title to all personal
property included in the Mortgaged Property, subject only to Permitted
Encumbrances (defined herein); (ii) has full right and authority to grant the
interests to Mortgagee as provided herein; and (iii) will warrant and defend to
Mortgagee such title to the Mortgaged Property and the lien and interest of
Mortgagee therein and thereon against all claims and demands whatsoever and
will, except as otherwise herein expressly provided, maintain the priority of
the lien of, and the security interest granted by, this Mortgage upon the
Mortgaged Property until Mortgagor shall be entitled to defeasance as provided
herein.
3. Mortgagor, at its expense, shall cause this Mortgage, any
instruments supplemental hereto, financing statements, including all necessary
amendments, supplements and appropriate continuation statements to be recorded,
registered and filed, and to be kept recorded, registered and filed, in such
manner and in such places as may be required in order to establish, preserve and
protect the lien of this Mortgage as a valid mortgage lien, subject only to
Permitted Encumbrances (defined herein).
4. All property of every kind acquired by Mortgagor after the date
hereof, which by the terms hereof is intended to be subject to the lien of this
Mortgage, shall immediately upon the acquisition thereof by Mortgagor, and
without further mortgage, conveyance or assignment, become subject to the lien
of this Mortgage as fully as though now owned by Mortgagor and specifically
described herein. Nevertheless, Mortgagor shall take such actions and execute
and deliver such additional instruments as Mortgagee shall reasonably require to
further evidence or confirm the subjection to the lien of this Mortgage of any
such property.
5. Mortgagor shall not sell, rent, convey, assign or transfer the
Mortgaged Property or any part or interest therein without the prior written
consent of Mortgagee, which shall not be unreasonably withheld. Mortgagor shall
not directly or indirectly create or permit to remain, and will promptly
discharge, any mortgage, lien, encumbrance or charge on, pledge of, security
interest in or conditional sale or other title retention agreement with respect
to the Mortgaged Property or any part thereof or the interest of Mortgagor or
Mortgagee therein or any revenues, income or profit or other sums arising from
the Mortgaged Property or any part thereof, (including, without limitation, any
lien, encumbrance or charge arising by operation of law) other than: (i) the
lien of this Mortgage and any other liens or rights of Mortgagee granted in any
of the Loan Documents; (ii) the lien of any lender identified in EXHIBIT A (the
"Senior Lender"); (iii) liens for taxes, assessments and other governmental
charges which are not at the time required to be paid; (iv) liens of mechanics,
materialmen, suppliers or vendors or rights thereto for amounts which at the
time are not required to be paid; and (v) purchase money security interests in
property purchased on credit or with borrowed money and which secures the
repayment of such credit or borrowed money (collectively, the "Permitted
Encumbrances")
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6. This Mortgage is also a security agreement and creates a security
interest in and to the Mortgaged Property to secure payment and performance of
the Obligations. Mortgagor has executed and delivered to Mortgagee a Security
Agreement, dated as of even date herewith. To the extent the Mortgaged Property
is covered by both this Mortgage and said Security Agreement, the provisions of
both shall apply, but in the event of a conflict, the provisions of this
Mortgage shall govern as to all portions of the Mortgage Property as constitutes
real property and fixtures and interests therein, and the provisions of the
Security Agreement shall govern as to all portions of the Mortgaged Property as
constitutes personal property.
7. This Mortgage is intended to be effective under the Uniform
Commercial Code as a financing statement filed as a fixture filing, and, in
compliance therewith, the following information is set forth:
(a) The name and address of the record owner/debtor is:
Xxxxx X. Xxxxxxx
0000 Xxxx Xxxx
Xxxxxxx Xxxxx, Xxxx 00000
(b) The name and address of the secured party is:
Advanced Lighting Technologies, Inc.
00000 Xxxxxx Xxxx
Xxxxx, Xxxx 00000
(c) The property covered hereby is described in detail in
EXHIBIT A, attached hereto.
8. Mortgagor hereby authorizes and empowers Mortgagee, at its option,
to do all things authorized or required to be done by Mortgagee, as a mortgagee,
under the laws of the state of Ohio and, if different, the state in which the
Mortgaged Property is located, to protect its interests in the Mortgaged
Property.
9. Nothing contained in this Mortgage shall constitute any request by
Mortgagee, express or implied, for the performance of any labor or services or
the furnishing of any materials or other property in respect of the Mortgaged
Property or any part thereof, or be construed to give Mortgagor any right, power
or authority to contract for or permit the performance of any labor or services
or the furnishing of any materials or other property in such fashion as would
provide the basis for any claim either against Mortgagee or that any lien based
on the performance of such labor or services or the furnishing of any such
materials or other property is prior to the lien of this Mortgage.
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10. Without affecting the liability of any other person liable for the
payment of any obligation herein mentioned, and 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 all unpaid obligations,
Mortgagee may, from time to time and without notice (a) release any person so
liable; (b) extend the maturity or alter any of the terms of any such
obligation; (c) grant other indulgences; (d) 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; (e) take or release any other or additional
security for any obligation herein mentioned; or (f) make compositions or other
arrangements with debtors in relation thereto.
11. Mortgagor shall pay promptly when due, and before penalty or
interest accrue thereon, all taxes, assessments, whether general or special, all
other governmental charges and all public or private utility charges of any kind
whatsoever foreseen or unforeseen, ordinary or extraordinary that now or may at
any time hereafter be assessed, levied or imposed against or with respect to the
Mortgaged Property or any part thereof which, if not paid, may become or be made
a lien on the Mortgaged Property, or any part thereof.
12. Mortgagor shall keep the real and personal property included in the
Mortgaged Property continuously insured with risk and liability insurance in
such amounts as Mortgagee reasonably requires. All insurance shall be obtained
and maintained either by means of policies with generally recognized,
responsible insurance companies. Mortgagor shall furnish Mortgagee with a
certificate of insurance for each policy setting forth the coverage, the limits
of liability, the name of the carrier, the policy number and the expiration
date. Each policy of insurance shall be written so as not to be subject to
cancellation or substantial modification which phrase shall include any
reduction in the scope or limits of coverage upon less than thirty (30) days
advance written notice to Mortgagee. All policies of insurance shall contain
standard mortgage clauses requiring all proceeds resulting from any claim for
loss or damage to be paid to Mortgagee.
13. Mortgagor, at its expense, shall comply with all laws with respect
to the Mortgaged Property, and shall keep (or cause to be kept) the Mortgaged
Property in good order and condition (ordinary wear and tear excepted) and shall
make or cause to be made all necessary or appropriate repairs, replacements and
renewals thereof, interior, exterior, structural and non-structural, ordinary
and extraordinary, foreseen and unforeseen unless Mortgagee otherwise consents
in writing. Mortgagor shall not do, or permit to be done, any act or thing which
might materially impair the value or usefulness of the Mortgaged Property or any
part thereof, shall not commit or permit any waste of the Mortgaged Property or
any part thereof, and shall not permit any unlawful use or occupation of the
Mortgaged Property or any part thereof.
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14. Mortgagor further covenants and agrees with Mortgagee that neither
Mortgagor nor any of its agents, employees, independent contractors, invitees,
licensees, successors, assignees, tenants or subtenants will store, release or
dispose of or permit the storage, release or disposal of any hazardous or toxic
substances or hazardous waste on the Mortgaged Property at any time from and
after the effective date of this Mortgage ("Environmental Issues").
15. Mortgagor will protect, indemnify and save harmless Mortgagee from
and against all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation, reasonable attorneys'
fees and expenses as may be limited by law or judicial order or decision entered
in any action brought to recover monies under this Section) imposed upon,
incurred by or asserted against Mortgagee by reason of (a) ownership of any
interest in the Mortgaged Property or any part thereof; (b) any accident, injury
to or death of persons or loss of or damage to property occurring on or about
the Mortgaged Property or any part thereof or the adjoining sidewalks, curbs,
vaults and vault space, if any, streets or ways; (c) any use, disuse or
condition of the Mortgaged Property or any part thereof, or the adjoining
sidewalks, curbs, vaults and vault space, if any, streets or ways, including any
Environmental Issues; (d) any failure on the part of Mortgagor to perform or
comply with any of the terms hereof; (e) any necessity to defend any of the
rights, title or interest conveyed by this Mortgage; or (f) the performance of
any labor or services or the furnishing of any materials or other property in
respect of the Mortgaged Property or any part thereof.
16. In case of any damage to or destruction of any buildings, fixtures
or personal property included in the Mortgaged Property, or any part thereof,
Mortgagor will promptly give written notice thereof to Mortgagee generally
describing the nature and extent of such damage or destruction. Any insurance or
other proceeds from any such damage or destruction shall be paid to Mortgagee,
unless Mortgagee otherwise consents in writing to Mortgagor's use of such
proceeds to repair or replace the damaged or destroyed property, which consent
will not be unreasonably withheld.
17. If title to or the temporary use of the Mortgaged Property, or any
part thereof, shall be taken under the exercise of the power of eminent domain
by any governmental body or by any person, firm or corporation acting under any
governmental body or by any person, firm or corporation acting under
governmental authority, Mortgagor will promptly give written notice thereof to
Mortgagee describing the nature and extent of such taking. Any proceeds received
from any award made in such eminent domain proceedings shall be paid to
Mortgagee.
18. If Mortgagor shall fail to make any payment or perform any act
required to be made or performed hereunder or under the Agreement or the Note,
Mortgagee, without notice or demand upon Mortgagor and without waiving or
releasing any obligation or default, may, but shall be under no obligation to,
make such payment or perform such act
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for the account and at the expense of Mortgagor and may enter upon the Mortgaged
Property or any part thereof for such purpose and take all such action thereon
as, in its sole opinion, may be necessary or appropriate therefor. All payments
so made by Mortgagee and all costs, fees and expenses incurred in connection
therewith or in connection with the performance by Mortgagee of any such act,
together with interest thereon at eight percent (8%) per annum shall, together
with such interest, be additional indebtedness secured by this Mortgage and
shall be paid by Mortgagor to Mortgagee on demand. In any action brought to
collect such indebtedness, or to foreclose this Mortgage, Mortgagee shall be
entitled to the recovery of such expenses in such action except as limited by
law or judicial order or decision entered in such proceedings.
19. Any default by Mortgagor of any obligation hereunder, any Default
under the Note, and any Event of Default under the Agreement, the Security
Agreement or the Assignment or any default of any of the other Obligations shall
be an "Event of Default" under this Mortgage.
20. If an Event of Default shall have occurred and be continuing,
Mortgagee, at any time, at its election, may exercise any or all or any
combination of the remedies conferred upon or reserved to it under this
Mortgage, the Agreement, the Note, the Security Agreement, the Assignment or any
instrument collateral thereto, or now or hereafter existing at law, or in equity
or by statute. Without limitation, Mortgagee may (a) declare the entire unpaid
principal balance of the Note and all other indebtedness secured hereby
immediately due and payable, without notice or demand, the same being expressly
waived by Mortgagor, subject to any cure periods provided for in the Note for
non-monetary defaults; (b) proceed at law or equity to collect all indebtedness
secured by this Mortgage due hereunder, whether at maturity or by acceleration;
(c) foreclose the lien of this Mortgage as against all or any part of the
Mortgaged Property; and (d) exercise any rights, powers and remedies it may have
as a secured party under the Uniform Commercial Code, or other similar laws in
effect, including, without limitation, the option of proceeding as to both
personal property and fixtures in accordance with Mortgagee's rights with
respect to real property.
21. Mortgagor does hereby waive to the full extent it may lawfully do
so, the benefit of all appraisement, valuation, stay and extension laws now or
hereafter in force and all rights of marshaling of assets in the event of any
sale of the Mortgaged Property, any part thereof or any interest therein and any
court having jurisdiction to foreclose the lien thereof may sell the Mortgaged
Property in part or as an entirety.
22. All amounts (including, without limitation, the proceeds of any
sale of the Mortgaged Property, any part thereof or any interest therein)
received by Mortgagee hereunder shall be applied to amounts due to it from
Mortgagor hereunder and under the Note, the Agreement, the Security Agreement,
the Assignment and the other Obligations, and shall be applied as follows:
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First: the payment of all costs incurred in the collection thereof
(including, without limitation, reasonable attorneys' fees and expenses except
as may have been limited by law or by judicial order or decision entered in any
action to foreclose this Mortgage);
Second: the payment of indebtedness secured by this Mortgage owing to
Mortgagee, other than indebtedness with respect to the Note at the time
outstanding; and
Third: the payment to Mortgagee for the payment of all amounts payable
under the Note in the order provided for therein.
23. Each right, power and remedy of Mortgagee, provided for in this
Mortgage, in the Agreement, the Note, the Security Agreement, the Assignment or
now or hereafter existing at law or in equity or by statute or otherwise, shall
be cumulative and concurrent and shall be in addition to every other right,
power or remedy provided for in this Mortgage, in the Agreement, the Note, the
Security Agreement, the Assignment or now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the exercise
or partial exercise by Mortgagee of any one or more of such rights, powers or
remedies shall not preclude the simultaneous or later exercise by Mortgagee of
any or all such other rights, powers or remedies.
24. All rights, powers and remedies provided herein may be exercised
only to the extent that the exercise thereof does not violate any applicable
law, and are intended to be limited to the extent necessary so that they will
not render this Mortgage invalid, unenforceable or not entitled to be recorded,
registered or filed under any applicable law.
25. No failure by Mortgagee to insist upon the strict performance of
any term hereof or to exercise any right, power or remedy consequent upon an
Event of Default, shall constitute a waiver of any such term or of any such
Event of Default. No waiver of any Event of Default shall affect or alter this
Mortgage, which shall continue in full force, and shall not effect a waiver with
respect to any subsequent such Event of Default or to any other then existing or
subsequent breach.
26. In case Mortgagee shall have proceeded to enforce any right, power
or remedy under this Mortgage by foreclosure, entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason, or shall
have been determined adversely to Mortgagee, then and in every case Mortgagor
and Mortgagee shall be restored to their former positions and rights hereunder,
and all rights, power and remedies of Mortgagee shall continue as if no such
proceeding had been taken.
27. Mortgagee shall have no liability for any loss, damage, injury,
cost or expense resulting from any act or omission to act by it or its
representatives whether or not negligent, which was taken or omitted pursuant to
this Mortgage.
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28. Without notice to or consent of Mortgagor and without impairment of
the lien and rights created by this Mortgage, Mortgagee may accept from
Mortgagor or from any other person or persons, additional security for the
indebtedness secured by this Mortgage. Neither the giving of this Mortgage nor
the acceptance of any such additional security shall prevent Mortgagee from
resorting first to such additional security or to the security created by this
Mortgage, in either case without affecting the lien hereof and the rights
conferred hereunder.
29. If all sums then due and payable under this Mortgage, the Note and
the Agreement by Mortgagor shall have been paid and Mortgagor shall have
complied with all the terms, conditions and requirements hereof and thereof,
then this Mortgage shall be null and void and of no further force and effect.
Upon the written request and at the expense of Mortgagor, Mortgagee will execute
and deliver such proper instruments of release and discharge as may reasonably
be requested to evidence such defeasance, release and discharge.
30. Mortgagee and its representatives are hereby authorized to enter
upon and inspect the Mortgaged Property at reasonable times, and so long as
Mortgagee does not unreasonably interfere with Mortgagor's use and enjoyment of
the Mortgaged Property.
31. Mortgagor shall, to the extent permitted by law, immediately upon
demand pay or reimburse Mortgagee for all reasonable attorneys' fees, costs and
expenses incurred by Mortgagee in any proceedings involving the estate of a
decedent, an insolvent or a debtor under federal bankruptcy law, or in any
action, proceeding or dispute of any kind in which Mortgagee is made a party, or
appears as an intervener or party plaintiff or defendant, affecting or relating
to the Note, this Mortgage or the Agreement, the Security Agreement, the
Assignment, Mortgagor or any of the Mortgaged Property, including, but not
limited to, the foreclosure of this Mortgage, any condemnation action involving
the Mortgaged Property, or any action to protect the security hereof, and any
such amounts paid by Mortgagee shall, except as may be limited by law or
judicial order or decision entered in any action to foreclose this Mortgage, be
added to the indebtedness secured hereby and secured by the lien and security
interest of this Mortgage and shall bear interest at eight percent (8%) per
annum.
32. It being the desire and intention of the parties hereto that this
Mortgage and the lien created hereby do not merge in fee simple title to the
Mortgaged Property, it is hereby understood and agreed that should Mortgagee
acquire any additional or other interests in or to the Mortgaged Property or the
ownership thereof, then, unless a contrary intent is manifested by Mortgagee as
evidence by an appropriate document duly recorded, this Mortgage and the lien
hereof shall not merge in the fee simple title, toward the end that this
Mortgage may be foreclosed as if owned by a stranger to the fee simple title.
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33. This Mortgage shall be deemed to be made under the laws of the
state of Ohio and for all purposes shall be governed by and construed in
accordance with the laws of Ohio without regard to conflict of laws principals
(except to the extent the Mortgaged Property is situated in a state other than
Ohio and in that case any laws of such state which are required to control
mortgages granted on such property shall apply) and shall inure to the benefit
of and be binding upon Mortgagor and his estate, heirs, executors,
administrators and personal representatives, successors and assigns and
Mortgagee and its successors and assigns. If any term or provision of this
Mortgage shall be held to be invalid, illegal or unenforceable, the validity of
the remaining provisions hereof shall in no way be affected thereby. The
captions or headings herein shall be solely for convenience of reference and in
no way define, limit or describe the scope or intent of any provisions or
sections of this Mortgage. This Mortgage may be executed in any number of
counterparts, each of which shall be regarded as an original and all of which
shall constitute but one and the same instrument; it shall not be necessary in
proving this Mortgage to produce or account for more than one such counterpart.
34. This Mortgage may not be effectively amended, changed, modified,
altered or terminated except as provided herein without the prior written
consent of Mortgagor and Mortgagee.
35. All sums payable by Mortgagor hereunder shall be paid without
notice, demand, counterclaims, setoff, deduction or defense, and without
abatement, suspension, deferment, diminution or reduction, and the obligations
and liabilities of Mortgagor hereunder shall in no way be released, discharged
or otherwise affected (except as expressly provided herein) by reason of (a) any
damage to or destruction of or any condemnation or similar taking of the
Mortgaged Property or any part thereof; (b) any restriction or prevention of or
interference with any use of the Mortgaged Property or any part thereof; (d) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to Mortgagor or any action taken
with respect to this Mortgage by any trustee or receiver of Mortgagor, or by any
court in such proceeding; (e) any claim which Mortgagor has or might have
against Mortgagee; (f) any default or failure on the part of Mortgagee to
perform or comply with any of the terms hereof or of any other agreements
pertaining to the loan on the Mortgaged Property with Mortgagor; or (g) any
other occurrence whatsoever, whether similar or dissimilar to the foregoing,
whether or not Mortgagor shall have notice or knowledge of any of the foregoing.
Except as expressly provided herein, Mortgagor waives all rights now or
hereafter conferred by statute or otherwise to any abatement, suspension,
deferment, diminution or reduction of any sum secured hereby and payable by
Mortgagor.
36. All notices, certificates, requests or other communications
hereunder shall be in writing and shall be deemed to be sufficiently given when
mailed by registered or certified mail, postage prepaid, and addressed to the
addresses set forth in the granting clause. Mortgagor and Mortgagee may, by
notice given hereunder, designate any further
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77
or different addresses to which subsequent notices, certificates, requests or
other communications shall be sent.
37. In the event of litigation concerning this document or any related
document(s), all costs, charges and expenses, including reasonable attorneys'
fees, shall be awarded to the prevailing party. As used herein and all related
loan documents, attorneys' fees shall include, but not be limited to, fees
incurred in all matters of collection
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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and enforcement, construction and interpretation, before, during or after trial,
proceedings and appeals, as well as appearances connected with bankruptcy
proceedings.
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the date
written below.
Signed and Acknowledged
in the Presence of: MORTGAGOR:
------------------------------ --------------------------------
XXXXX X. XXXXXXX
______________________________ Date:____________________________
I hereby release all of my dower rights in the Mortgaged Property.
Signed and Acknowledged
in the Presence of:
------------------------------ --------------------------------
XXXXX XXXXXXX
______________________________ Date:____________________________
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
The foregoing instrument was executed before me this ____ day of
February, 1999, by Xxxxx X. Xxxxxxx and Xxxxx Xxxxxxx who are personally known
to me and who did swear that the same was done of their own free will.
-------------------------------
Notary Public
Prepared by:
Xxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxx Xxxxxx LLP
000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
(000) 000-0000
Page 11 of 11
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EXHIBIT A - MORTGAGED PROPERTY
REAL ESTATE MORTGAGE
XXXXX X. XXXXXXX / ADVANCED LIGHTING TECHNOLOGIES, INC.
PROPERTY ADDRESS: 000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
PARCEL NUMBER: 03-016-00-00-240-000
SENIOR LENDER: Xxxxxxx Xxxxx Credit Corporation
LEGAL DESCRIPTION: Sublot No. 196 in Barrington
Subdivision No. 2 being part of
original Aurora Township Lot Nos. 8,
9, 15 and 16 as shown by the
recorded Plat 94-74 of Portage
County Records (the "Sublot" or
"Sublots"), together with all rights
granted by the Master Declaration of
Covenants, Conditions, Easements and
Restrictions of Barrington, Aurora,
Ohio recorded in Volume 1116, Pages
538 through 600 of Portage County
Records.
80
REAL ESTATE MORTGAGE
Filed for record in ______ County, ______ on
February ____, 1999, ______ o'clock _.m., E.D.T.
No. _______________ and recorded at
Volume ______, Page _______,
______ County, ______, Mortgage Records
As an inducement to and in consideration of the loan to the
undersigned, XXXXX X. XXXXXXX ("Mortgagor"), having his principal residence at
0000 Xxxx Xxxx, Xxxxxxx Xxxxx, Xxxx 00000 by ADVANCED LIGHTING TECHNOLOGIES,
INC., ("Mortgagee"), an Ohio corporation having its principal offices at 00000
Xxxxxx Xxxx, Xxxxx, Xxxx 00000, pursuant to the Loan Agreement dated as of
October 8, 1998, by and between Mortgagor and Mortgagee (the "Agreement") and
evidenced by the Secured Promissory Note dated as of October 8, 1998, with a
maturity date of October 6, 1999, made by Mortgagor to Mortgagee (the "Note"),
and further evidenced by the Security Agreement and the Collateral Assignment of
Contract, both dated as of October 8, 1998, by and between Mortgagor and
Mortgagee (respectively, the "Security Agreement" and the "Assignment"), and for
other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Mortgagor hereby grants, bargains, sells, conveys, mortgages,
assigns and grants a security interest in and transfers unto Mortgagee, its
successors and assigns, to have and to hold forever, all right, title and
interest of Mortgagor in and to the real property described in EXHIBIT A,
together with all other real properties now or hereafter made subject to the
lien of this Mortgage by supplemental mortgage or otherwise, and (i) in and to
the buildings and other improvements now or hereafter situated thereon; (ii) all
privileges and appurtenances thereto; (iii) all fixtures now or hereafter
attached to and used in connection therewith; (iv) all renewals or replacements
thereof or articles in substitution therefor; (v) all proceeds of any of the
foregoing or from any insurance payable with respect thereto (from whatever
source), or payments from any taking under power of eminent domain of all or any
portion thereof; and (vi) all rents, issues and profits or other amounts due
Mortgagor in respect thereof (collectively, the "Mortgaged Property"). This
Mortgage is made subject to all restrictions and easements of record, current
taxes and assessments.
1. This Mortgage secures the payment of principal in the amount of Nine
Million Dollars ($9,000,000), together with all interest thereon and any other
amounts now or hereafter owing from Mortgagor to Mortgagee hereunder, under the
Note or the Agreement, and under the Security Agreement and the Assignment and
all other agreements entered into by Mortgagee and Mortgagor in connection
herewith and therewith, and the performance of all other obligations of
Mortgagor hereunder and thereunder (collectively, the "Obligations").
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2. Mortgagor represents and warrants to Mortgagee that Mortgagor (i) is
lawfully seized with good and marketable title, in fee simple, to the real
property included in the Mortgaged Property and has good title to all personal
property included in the Mortgaged Property, subject only to Permitted
Encumbrances (defined herein); (ii) has full right and authority to grant the
interests to Mortgagee as provided herein; and (iii) will warrant and defend to
Mortgagee such title to the Mortgaged Property and the lien and interest of
Mortgagee therein and thereon against all claims and demands whatsoever and
will, except as otherwise herein expressly provided, maintain the priority of
the lien of, and the security interest granted by, this Mortgage upon the
Mortgaged Property until Mortgagor shall be entitled to defeasance as provided
herein.
3. Mortgagor, at its expense, shall cause this Mortgage, any
instruments supplemental hereto, financing statements, including all necessary
amendments, supplements and appropriate continuation statements to be recorded,
registered and filed, and to be kept recorded, registered and filed, in such
manner and in such places as may be required in order to establish, preserve and
protect the lien of this Mortgage as a valid mortgage lien, subject only to
Permitted Encumbrances (defined herein).
4. All property of every kind acquired by Mortgagor after the date
hereof, which by the terms hereof is intended to be subject to the lien of this
Mortgage, shall immediately upon the acquisition thereof by Mortgagor, and
without further mortgage, conveyance or assignment, become subject to the lien
of this Mortgage as fully as though now owned by Mortgagor and specifically
described herein. Nevertheless, Mortgagor shall take such actions and execute
and deliver such additional instruments as Mortgagee shall reasonably require to
further evidence or confirm the subjection to the lien of this Mortgage of any
such property.
5. Mortgagor shall not sell, rent, convey, assign or transfer the
Mortgaged Property or any part or interest therein without the prior written
consent of Mortgagee, which shall not be unreasonably withheld. Mortgagor shall
not directly or indirectly create or permit to remain, and will promptly
discharge, any mortgage, lien, encumbrance or charge on, pledge of, security
interest in or conditional sale or other title retention agreement with respect
to the Mortgaged Property or any part thereof or the interest of Mortgagor or
Mortgagee therein or any revenues, income or profit or other sums arising from
the Mortgaged Property or any part thereof, (including, without limitation, any
lien, encumbrance or charge arising by operation of law) other than: (i) the
lien of this Mortgage and any other liens or rights of Mortgagee granted in any
of the Loan Documents; (ii) the lien of any lender identified in EXHIBIT A (the
"Senior Lender"); (iii) liens for taxes, assessments and other governmental
charges which are not at the time required to be paid; (iv) liens of mechanics,
materialmen, suppliers or vendors or rights thereto for amounts which at the
time are not required to be paid; and (v) purchase money security interests in
property purchased on credit or with borrowed money and which secures the
repayment of such credit or borrowed money (collectively, the "Permitted
Encumbrances")
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6. This Mortgage is also a security agreement and creates a security
interest in and to the Mortgaged Property to secure payment and performance of
the Obligations. Mortgagor has executed and delivered to Mortgagee a Security
Agreement, dated as of even date herewith. To the extent the Mortgaged Property
is covered by both this Mortgage and said Security Agreement, the provisions of
both shall apply, but in the event of a conflict, the provisions of this
Mortgage shall govern as to all portions of the Mortgage Property as constitutes
real property and fixtures and interests therein, and the provisions of the
Security Agreement shall govern as to all portions of the Mortgaged Property as
constitutes personal property.
7. This Mortgage is intended to be effective under the Uniform
Commercial Code as a financing statement filed as a fixture filing, and, in
compliance therewith, the following information is set forth:
(a) The name and address of the record owner/debtor is:
Xxxxx X. Xxxxxxx
0000 Xxxx Xxxx
Xxxxxxx Xxxxx, Xxxx 00000
(b) The name and address of the secured party is:
Advanced Lighting Technologies, Inc.
00000 Xxxxxx Xxxx
Xxxxx, Xxxx 00000
(c) The property covered hereby is described in detail in
EXHIBIT A, attached hereto.
8. Mortgagor hereby authorizes and empowers Mortgagee, at its option,
to do all things authorized or required to be done by Mortgagee, as a mortgagee,
under the laws of the state of Ohio and, if different, the state in which the
Mortgaged Property is located, to protect its interests in the Mortgaged
Property.
9. Nothing contained in this Mortgage shall constitute any request by
Mortgagee, express or implied, for the performance of any labor or services or
the furnishing of any materials or other property in respect of the Mortgaged
Property or any part thereof, or be construed to give Mortgagor any right, power
or authority to contract for or permit the performance of any labor or services
or the furnishing of any materials or other property in such fashion as would
provide the basis for any claim either against Mortgagee or that any lien based
on the performance of such labor or services or the furnishing of any such
materials or other property is prior to the lien of this Mortgage.
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10. Without affecting the liability of any other person liable for the
payment of any obligation herein mentioned, and 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 all unpaid obligations,
Mortgagee may, from time to time and without notice (a) release any person so
liable; (b) extend the maturity or alter any of the terms of any such
obligation; (c) grant other indulgences; (d) 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; (e) take or release any other or additional
security for any obligation herein mentioned; or (f) make compositions or other
arrangements with debtors in relation thereto.
11. Mortgagor shall pay promptly when due, and before penalty or
interest accrue thereon, all taxes, assessments, whether general or special, all
other governmental charges and all public or private utility charges of any kind
whatsoever foreseen or unforeseen, ordinary or extraordinary that now or may at
any time hereafter be assessed, levied or imposed against or with respect to the
Mortgaged Property or any part thereof which, if not paid, may become or be made
a lien on the Mortgaged Property, or any part thereof.
12. Mortgagor shall keep the real and personal property included in the
Mortgaged Property continuously insured with risk and liability insurance in
such amounts as Mortgagee reasonably requires. All insurance shall be obtained
and maintained either by means of policies with generally recognized,
responsible insurance companies. Mortgagor shall furnish Mortgagee with a
certificate of insurance for each policy setting forth the coverage, the limits
of liability, the name of the carrier, the policy number and the expiration
date. Each policy of insurance shall be written so as not to be subject to
cancellation or substantial modification which phrase shall include any
reduction in the scope or limits of coverage upon less than thirty (30) days
advance written notice to Mortgagee. All policies of insurance shall contain
standard mortgage clauses requiring all proceeds resulting from any claim for
loss or damage to be paid to Mortgagee.
13. Mortgagor, at its expense, shall comply with all laws with respect
to the Mortgaged Property, and shall keep (or cause to be kept) the Mortgaged
Property in good order and condition (ordinary wear and tear excepted) and shall
make or cause to be made all necessary or appropriate repairs, replacements and
renewals thereof, interior, exterior, structural and non-structural, ordinary
and extraordinary, foreseen and unforeseen unless Mortgagee otherwise consents
in writing. Mortgagor shall not do, or permit to be done, any act or thing which
might materially impair the value or usefulness of the Mortgaged Property or any
part thereof, shall not commit or permit any waste of the Mortgaged Property or
any part thereof, and shall not permit any unlawful use or occupation of the
Mortgaged Property or any part thereof.
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14. Mortgagor further covenants and agrees with Mortgagee that neither
Mortgagor nor any of its agents, employees, independent contractors, invitees,
licensees, successors, assignees, tenants or subtenants will store, release or
dispose of or permit the storage, release or disposal of any hazardous or toxic
substances or hazardous waste on the Mortgaged Property at any time from and
after the effective date of this Mortgage ("Environmental Issues").
15. Mortgagor will protect, indemnify and save harmless Mortgagee from
and against all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including, without limitation, reasonable attorneys'
fees and expenses as may be limited by law or judicial order or decision entered
in any action brought to recover monies under this Section) imposed upon,
incurred by or asserted against Mortgagee by reason of (a) ownership of any
interest in the Mortgaged Property or any part thereof; (b) any accident, injury
to or death of persons or loss of or damage to property occurring on or about
the Mortgaged Property or any part thereof or the adjoining sidewalks, curbs,
vaults and vault space, if any, streets or ways; (c) any use, disuse or
condition of the Mortgaged Property or any part thereof, or the adjoining
sidewalks, curbs, vaults and vault space, if any, streets or ways, including any
Environmental Issues; (d) any failure on the part of Mortgagor to perform or
comply with any of the terms hereof; (e) any necessity to defend any of the
rights, title or interest conveyed by this Mortgage; or (f) the performance of
any labor or services or the furnishing of any materials or other property in
respect of the Mortgaged Property or any part thereof.
16. In case of any damage to or destruction of any buildings, fixtures
or personal property included in the Mortgaged Property, or any part thereof,
Mortgagor will promptly give written notice thereof to Mortgagee generally
describing the nature and extent of such damage or destruction. Any insurance or
other proceeds from any such damage or destruction shall be paid to Mortgagee,
unless Mortgagee otherwise consents in writing to Mortgagor's use of such
proceeds to repair or replace the damaged or destroyed property, which consent
will not be unreasonably withheld.
17. If title to or the temporary use of the Mortgaged Property, or any
part thereof, shall be taken under the exercise of the power of eminent domain
by any governmental body or by any person, firm or corporation acting under any
governmental body or by any person, firm or corporation acting under
governmental authority, Mortgagor will promptly give written notice thereof to
Mortgagee describing the nature and extent of such taking. Any proceeds received
from any award made in such eminent domain proceedings shall be paid to
Mortgagee.
18. If Mortgagor shall fail to make any payment or perform any act
required to be made or performed hereunder or under the Agreement or the Note,
Mortgagee, without notice or demand upon Mortgagor and without waiving or
releasing any obligation or default, may, but shall be under no obligation to,
make such payment or perform such act
Page 5 of 11
85
for the account and at the expense of Mortgagor and may enter upon the Mortgaged
Property or any part thereof for such purpose and take all such action thereon
as, in its sole opinion, may be necessary or appropriate therefor. All payments
so made by Mortgagee and all costs, fees and expenses incurred in connection
therewith or in connection with the performance by Mortgagee of any such act,
together with interest thereon at eight percent (8%) per annum shall, together
with such interest, be additional indebtedness secured by this Mortgage and
shall be paid by Mortgagor to Mortgagee on demand. In any action brought to
collect such indebtedness, or to foreclose this Mortgage, Mortgagee shall be
entitled to the recovery of such expenses in such action except as limited by
law or judicial order or decision entered in such proceedings.
19. Any default by Mortgagor of any obligation hereunder, any Default
under the Note, and any Event of Default under the Agreement, the Security
Agreement or the Assignment or any default of any of the other Obligations shall
be an "Event of Default" under this Mortgage.
20. If an Event of Default shall have occurred and be continuing,
Mortgagee, at any time, at its election, may exercise any or all or any
combination of the remedies conferred upon or reserved to it under this
Mortgage, the Agreement, the Note, the Security Agreement, the Assignment or any
instrument collateral thereto, or now or hereafter existing at law, or in equity
or by statute. Without limitation, Mortgagee may (a) declare the entire unpaid
principal balance of the Note and all other indebtedness secured hereby
immediately due and payable, without notice or demand, the same being expressly
waived by Mortgagor, subject to any cure periods provided for in the Note for
non-monetary defaults; (b) proceed at law or equity to collect all indebtedness
secured by this Mortgage due hereunder, whether at maturity or by acceleration;
(c) foreclose the lien of this Mortgage as against all or any part of the
Mortgaged Property; and (d) exercise any rights, powers and remedies it may have
as a secured party under the Uniform Commercial Code, or other similar laws in
effect, including, without limitation, the option of proceeding as to both
personal property and fixtures in accordance with Mortgagee's rights with
respect to real property.
21. Mortgagor does hereby waive to the full extent it may lawfully do
so, the benefit of all appraisement, valuation, stay and extension laws now or
hereafter in force and all rights of marshaling of assets in the event of any
sale of the Mortgaged Property, any part thereof or any interest therein and any
court having jurisdiction to foreclose the lien thereof may sell the Mortgaged
Property in part or as an entirety.
22. All amounts (including, without limitation, the proceeds of any
sale of the Mortgaged Property, any part thereof or any interest therein)
received by Mortgagee hereunder shall be applied to amounts due to it from
Mortgagor hereunder and under the Note, the Agreement, the Security Agreement,
the Assignment and the other Obligations, and shall be applied as follows:
Page 6 of 11
86
First: the payment of all costs incurred in the collection thereof
(including, without limitation, reasonable attorneys' fees and expenses except
as may have been limited by law or by judicial order or decision entered in any
action to foreclose this Mortgage);
Second: the payment of indebtedness secured by this Mortgage owing to
Mortgagee, other than indebtedness with respect to the Note at the time
outstanding; and
Third: the payment to Mortgagee for the payment of all amounts payable
under the Note in the order provided for therein.
23. Each right, power and remedy of Mortgagee, provided for in this
Mortgage, in the Agreement, the Note, the Security Agreement, the Assignment or
now or hereafter existing at law or in equity or by statute or otherwise, shall
be cumulative and concurrent and shall be in addition to every other right,
power or remedy provided for in this Mortgage, in the Agreement, the Note, the
Security Agreement, the Assignment or now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the exercise
or partial exercise by Mortgagee of any one or more of such rights, powers or
remedies shall not preclude the simultaneous or later exercise by Mortgagee of
any or all such other rights, powers or remedies.
24. All rights, powers and remedies provided herein may be exercised
only to the extent that the exercise thereof does not violate any applicable
law, and are intended to be limited to the extent necessary so that they will
not render this Mortgage invalid, unenforceable or not entitled to be recorded,
registered or filed under any applicable law.
25. No failure by Mortgagee to insist upon the strict performance of
any term hereof or to exercise any right, power or remedy consequent upon an
Event of Default, shall constitute a waiver of any such term or of any such
Event of Default. No waiver of any Event of Default shall affect or alter this
Mortgage, which shall continue in full force, and shall not effect a waiver with
respect to any subsequent such Event of Default or to any other then existing or
subsequent breach.
26. In case Mortgagee shall have proceeded to enforce any right, power
or remedy under this Mortgage by foreclosure, entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason, or shall
have been determined adversely to Mortgagee, then and in every case Mortgagor
and Mortgagee shall be restored to their former positions and rights hereunder,
and all rights, power and remedies of Mortgagee shall continue as if no such
proceeding had been taken.
27. Mortgagee shall have no liability for any loss, damage, injury,
cost or expense resulting from any act or omission to act by it or its
representatives whether or not negligent, which was taken or omitted pursuant to
this Mortgage.
Page 7 of 11
87
28. Without notice to or consent of Mortgagor and without impairment of
the lien and rights created by this Mortgage, Mortgagee may accept from
Mortgagor or from any other person or persons, additional security for the
indebtedness secured by this Mortgage. Neither the giving of this Mortgage nor
the acceptance of any such additional security shall prevent Mortgagee from
resorting first to such additional security or to the security created by this
Mortgage, in either case without affecting the lien hereof and the rights
conferred hereunder.
29. If all sums then due and payable under this Mortgage, the Note and
the Agreement by Mortgagor shall have been paid and Mortgagor shall have
complied with all the terms, conditions and requirements hereof and thereof,
then this Mortgage shall be null and void and of no further force and effect.
Upon the written request and at the expense of Mortgagor, Mortgagee will execute
and deliver such proper instruments of release and discharge as may reasonably
be requested to evidence such defeasance, release and discharge.
30. Mortgagee and its representatives are hereby authorized to enter
upon and inspect the Mortgaged Property at reasonable times, and so long as
Mortgagee does not unreasonably interfere with Mortgagor's use and enjoyment of
the Mortgaged Property.
31. Mortgagor shall, to the extent permitted by law, immediately upon
demand pay or reimburse Mortgagee for all reasonable attorneys' fees, costs and
expenses incurred by Mortgagee in any proceedings involving the estate of a
decedent, an insolvent or a debtor under federal bankruptcy law, or in any
action, proceeding or dispute of any kind in which Mortgagee is made a party, or
appears as an intervener or party plaintiff or defendant, affecting or relating
to the Note, this Mortgage or the Agreement, the Security Agreement, the
Assignment, Mortgagor or any of the Mortgaged Property, including, but not
limited to, the foreclosure of this Mortgage, any condemnation action involving
the Mortgaged Property, or any action to protect the security hereof, and any
such amounts paid by Mortgagee shall, except as may be limited by law or
judicial order or decision entered in any action to foreclose this Mortgage, be
added to the indebtedness secured hereby and secured by the lien and security
interest of this Mortgage and shall bear interest at eight percent (8%) per
annum.
32. It being the desire and intention of the parties hereto that this
Mortgage and the lien created hereby do not merge in fee simple title to the
Mortgaged Property, it is hereby understood and agreed that should Mortgagee
acquire any additional or other interests in or to the Mortgaged Property or the
ownership thereof, then, unless a contrary intent is manifested by Mortgagee as
evidence by an appropriate document duly recorded, this Mortgage and the lien
hereof shall not merge in the fee simple title, toward the end that this
Mortgage may be foreclosed as if owned by a stranger to the fee simple title.
Page 8 of 11
88
33. This Mortgage shall be deemed to be made under the laws of the
state of Ohio and for all purposes shall be governed by and construed in
accordance with the laws of Ohio without regard to conflict of laws principals
(except to the extent the Mortgaged Property is situated in a state other than
Ohio and in that case any laws of such state which are required to control
mortgages granted on such property shall apply) and shall inure to the benefit
of and be binding upon Mortgagor and his estate, heirs, executors,
administrators and personal representatives, successors and assigns and
Mortgagee and its successors and assigns. If any term or provision of this
Mortgage shall be held to be invalid, illegal or unenforceable, the validity of
the remaining provisions hereof shall in no way be affected thereby. The
captions or headings herein shall be solely for convenience of reference and in
no way define, limit or describe the scope or intent of any provisions or
sections of this Mortgage. This Mortgage may be executed in any number of
counterparts, each of which shall be regarded as an original and all of which
shall constitute but one and the same instrument; it shall not be necessary in
proving this Mortgage to produce or account for more than one such counterpart.
34. This Mortgage may not be effectively amended, changed, modified,
altered or terminated except as provided herein without the prior written
consent of Mortgagor and Mortgagee.
35. All sums payable by Mortgagor hereunder shall be paid without
notice, demand, counterclaims, setoff, deduction or defense, and without
abatement, suspension, deferment, diminution or reduction, and the obligations
and liabilities of Mortgagor hereunder shall in no way be released, discharged
or otherwise affected (except as expressly provided herein) by reason of (a) any
damage to or destruction of or any condemnation or similar taking of the
Mortgaged Property or any part thereof; (b) any restriction or prevention of or
interference with any use of the Mortgaged Property or any part thereof; (d) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to Mortgagor or any action taken
with respect to this Mortgage by any trustee or receiver of Mortgagor, or by any
court in such proceeding; (e) any claim which Mortgagor has or might have
against Mortgagee; (f) any default or failure on the part of Mortgagee to
perform or comply with any of the terms hereof or of any other agreements
pertaining to the loan on the Mortgaged Property with Mortgagor; or (g) any
other occurrence whatsoever, whether similar or dissimilar to the foregoing,
whether or not Mortgagor shall have notice or knowledge of any of the foregoing.
Except as expressly provided herein, Mortgagor waives all rights now or
hereafter conferred by statute or otherwise to any abatement, suspension,
deferment, diminution or reduction of any sum secured hereby and payable by
Mortgagor.
36. All notices, certificates, requests or other communications
hereunder shall be in writing and shall be deemed to be sufficiently given when
mailed by registered or certified mail, postage prepaid, and addressed to the
addresses set forth in the granting clause. Mortgagor and Mortgagee may, by
notice given hereunder, designate any further
Page 9 of 11
89
or different addresses to which subsequent notices, certificates, requests or
other communications shall be sent.
37. In the event of litigation concerning this document or any related
document(s), all costs, charges and expenses, including reasonable attorneys'
fees, shall be awarded to the prevailing party. As used herein and all related
loan documents, attorneys' fees shall include, but not be limited to, fees
incurred in all matters of collection
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Page 10 of 11
90
and enforcement, construction and interpretation, before, during or after trial,
proceedings and appeals, as well as appearances connected with bankruptcy
proceedings.
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the date
written below.
Signed and Acknowledged
in the Presence of: MORTGAGOR:
------------------------------ --------------------------------
XXXXX X. XXXXXXX
______________________________ Date:____________________________
I hereby release all of my dower rights in the Mortgaged Property.
Signed and Acknowledged
in the Presence of:
------------------------------ --------------------------------
XXXXX XXXXXXX
______________________________ Date:____________________________
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
The foregoing instrument was executed before me this ____ day of
February, 1999, by Xxxxx X. Xxxxxxx and Xxxxx Xxxxxxx who are personally known
to me and who did swear that the same was done of their own free will.
-------------------------------
Notary Public
Prepared by:
Xxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxx Xxxxxx LLP
000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000
(000) 000-0000
Page 11 of 11
91
EXHIBIT A - MORTGAGED PROPERTY
REAL ESTATE MORTGAGE
XXXXX X. XXXXXXX / ADVANCED LIGHTING TECHNOLOGIES, INC.
PROPERTY ADDRESS: 000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
PARCEL NUMBER: 03-016-00-00-239-000
SENIOR LENDER: Xxxxxxx Xxxxx Credit Corporation
LEGAL DESCRIPTION: Sublot No. 195 in Barrington Subdivision
No. 2 being part of original Aurora
Township Lot Nos. 8, 9, 15 and 16 as
shown by the recorded Plat 94-74 of
Portage County Records (the "Sublot" or
"Sublots"), together with all rights
granted by the Master Declaration of
Covenants, Conditions, Easements and
Restrictions of Barrington, Aurora, Ohio
recorded in Volume 1116, Pages 538
through 600 of Portage County Records.
92
ALLONGE NO. 2
to
PROMISSORY NOTE
by and between
00 XXXXX XXXXXX, INC. AND XXXXX X. XXXXXXX
This ALLONGE NO. 2 shall be so firmly affixed to the Promissory Note as
to become a part hereof. The Promissory Note is that certain Note dated May 19,
1997, issued by 00 XXXXX XXXXXX, INC. ("Maker") to XXXXX X. XXXXXXX in the
principal amount of $350,000, as amended by ALLONGE NO. 1, dated September 2,
1998.
The Promissory Note is hereby amended as follows:
The Promissory Note and all rights and benefits of Xxxxx X. Xxxxxxx
thereunder are hereby assigned to Advanced Lighting Technologies, Inc.
in accordance with the Collateral Assignment of Contract entered into
by Xxxxx X. Xxxxxxx for the benefit of Advanced Lighting Technologies,
Inc., dated October 8, 1998.
Except as amended hereby, the Promissory Note is in full force and
effect.
IN WITNESS WHEREOF, the Maker has executed and delivered this ALLONGE
NO. 2 to Xxxxx X. Xxxxxxx and Advanced Lighting Technologies, Inc. as of the
date written below.
WITNESSES:
00 XXXXX XXXXXX, INC.
-------------------------
By:________________________
-------------------------
Its:________________________
Date:______________________
-------------------------
-------------------------
93
Standard Form Florida UCC-1
Financing Statement with Exhibit 1 Attached
94
EXHIBIT 1
to Florida UCC-1 Financing Statement
I. All personal property now owned or hereinafter acquired
including, but not limited to, stocks; bonds and other
securities; investment property; contract rights; furniture;
furnishings; chattel papers; deposit accounts; documents;
choses in action; money; instruments; goods (whether covered
by a certificate of title or not); general intangibles;
foreign currency; letters of credit and advices of credit; and
II. A 1997 Regal pleasure boat, Registration Number FL1982KB, Hull
Identification Number RGMPA012G697 and all engines, fixtures
and chattels now or hereafter attached thereto or found
thereon; and
III. With respect to all of the foregoing, all (i) privileges and
appurtenances thereto, (ii) renewals or replacement thereof or
articles in substitution therefor, (iii) proceeds of any of
the foregoing or from any insurance payable with respect
thereto (from whatever source), or payments from any taking
under power of eminent domain of all or any portion thereof,
and (iv) all rents, issues, profits or other amounts due to
Debtor in respect thereof; and
IV. Notwithstanding the foregoing, this UCC Financing Statement
does not cover any stocks, bonds or other securities held by
Debtor in Advanced Lighting Technologies, Inc. nor any
membership interest in Xxxxxxx, Ltd.
95
Standard Form Ohio UCC-1
Financing Statement with Exhibit 1 Attached
96
EXHIBIT 1
to Ohio UCC-1 Financing Statement
I. All personal property now owned or hereinafter acquired
including, but not limited to, stocks; bonds and other
securities; investment property; contract rights; furniture;
furnishings; chattel papers; deposit accounts; documents;
choses in action; money; instruments; goods (whether covered
by a certificate of title or not); general intangibles;
foreign currency; letters of credit and advices of credit; and
II. A 1997 Regal pleasure boat, Registration Number FL1982KB, Hull
Identification Number RGMPA012G697 and all engines, fixtures
and chattels now or hereafter attached thereto or found
thereon; and
III. With respect to all of the foregoing, all (i) privileges and
appurtenances thereto, (ii) renewals or replacement thereof or
articles in substitution therefor, (iii) proceeds of any of
the foregoing or from any insurance payable with respect
thereto (from whatever source), or payments from any taking
under power of eminent domain of all or any portion thereof,
and (iv) all rents, issues, profits or other amounts due to
Debtor in respect thereof; and
IV. Notwithstanding the foregoing, this UCC Financing Statement
does not cover any stocks, bonds or other securities held by
Debtor in Advanced Lighting Technologies, Inc. nor any
membership interest in Xxxxxxx, Ltd.
97
SCHEDULE 2.2(f)
LOAN AGREEMENT
XXXXX X. XXXXXXX / ADVANCED LIGHTING TECHNOLOGIES, INC.
1. Key Bank National Association - Senior Lender on property
located at 0000 Xxxx Xxxx, Xxxxxxx Xxxxx, Xxxx 00000-0000.
2. First Union National Bank of Florida - Senior Lender on
property located at 00000 Xxxxxx Xxxxx Xxxxx, Xxxxxx Xxxxxxx,
Xxxxxxx 00000-0000.
3. Xxxxxxx Xxxxx Credit Corporation - Senior Lender on property
located at 000 Xxxxxxxx Xxxxx xxx 000 Xxxxxxxx Xxxxx, Xxxxxx,
Xxxx 00000.
98
SCHEDULE 2.2(j)
LOAN AGREEMENT
XXXXX X. XXXXXXX / ADVANCED LIGHTING TECHNOLOGIES, INC.
1. Key Bank National Association - Senor Lender on property
located at 0000 Xxxx Xxxx, Xxxxxxx Xxxxx, Xxxx 00000-0000.
2. First Union National Bank of Florida - Senior Lender on
property located at 00000 Xxxxxx Xxxxx Xxxxx, Xxxxxx Xxxxxxx,
Xxxxxxx 00000-0000.
3. Xxxxxxx Xxxxx Credit Corporation - Senior Lender on property
located at 000 Xxxxxxxx Xxxxx and 000 Xxxxxxxx Xxxxx, Xxxxxx,
Xxxx 00000.
99
EXHIBIT 2.2-l - MARGIN LOAN
LOAN AGREEMENT
XXXXX X. XXXXXXX / ADVANCED LIGHTING TECHNOLOGIES, INC.
Amount Currently Owed by Borrower on Margin Loan $15,049,195
Current Amount of Margin Deficit $8,327,313
Collateral Securing the Margin Loan, including Margin Shares $10,008,716
100
EXHIBIT 2.2-m
LOAN AGREEMENT
XXXXX X. XXXXXXX / ADVANCED LIGHTING TECHNOLOGIES, INC.
Stocks, bonds or other securities of Advanced Lighting Technologies,
Inc. held by Xxxxxxx, Ltd. or in trust for the benefit of Borrower=s
children.
