Exhibit 10.5
OPEN-END
MORTGAGE AND SECURITY AGREEMENT
(Maximum Amount Unpaid Principal Indebtedness $1,800,000)
THIS OPEN-END MORTGAGE AND SECURITY AGREEMENT (the "Mortgage") made as of
the 12th day of June, 2003, by DENTAL CARE PLUS, INC., an Ohio corporation,
located at 0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000 (the
"Mortgagor"), in favor of FIFTH THIRD BANK, an Ohio banking corporation located
at 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx, 00000, for itself and as agent
for any affiliate of Fifth Third Bancorp (the "Mortgagee").
WITNESSETH:
WHEREAS, Mortgagor is indebted to Mortgagee in the aggregate principal
amount of One Million Eight Hundred Thousand Dollars ($1,800,000) pursuant to
the Term Note executed by Mortgagor and made payable to the order of Mortgagee,
in the principal amount of One Million Eight Hundred Thousand Dollars
($1,800,000) (the "Note"), and all agreements, instruments and documents
executed or delivered in connection with the foregoing or otherwise related
thereto (together with any amendments, modifications, or restatements thereof,
the "Loan Documents"); and
WHEREAS, Mortgagor desires to grant herein a first priority mortgage to
Mortgagee encumbering the real estate described below.
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, and to secure (i) the payment of the Indebtedness
and Impositions (as defined below) and the interest thereon, (ii) the payment of
any advances or expenses of any kind incurred by Mortgagee pursuant to the
provisions of or on account of the Loan Documents or this Mortgage, (iii) the
repayment of future advances disbursed by Mortgagee to Mortgagor in excess of
the principal of the Indebtedness, and (iv) the performance of the obligations
of the Mortgagor under the Loan Documents the parties hereby agree as follows:
ARTICLE 1.
GRANTING PROVISIONS
The Mortgagor does hereby grant, bargain, sell, release, convey, assign,
transfer grant a security interest in and mortgage to Mortgagee, its successors
and assigns forever, (a) the real estate located in Xxxxxxxx County, Ohio, more
particularly described in Exhibit A attached hereto (hereinafter the "Site"),
and (b) all of the estate, title and interest of Mortgagor, in law or equity,
of, in and to such real estate and the buildings and improvements now existing,
being constructed, or hereafter constructed or placed thereon, all of the
rights, privileges, licenses, easements and appurtenances belonging to such real
estate (including all heretofore, of hereafter vacated streets or alleys which
are about such real estate), and all fixtures of every kind whatsoever located
in or on, or attached to, and used or intended to be used in connection with or
with the operation of such real estate, buildings, structures or other
improvements thereon or in connection with any construction now or to be
conducted or which may be conducted thereon, together with all building
materials and equipment now or hereafter delivered to such real estate
and intended to be installed therein; and all extensions, additions,
improvements, betterments, renewals, substitutions and replacements to any of
the foregoing, and the proceeds of any of the foregoing (all of the foregoing,
including the Site, being hereinafter collectively called the "Property").
The Mortgagor further hereby grants, conveys, and assigns to Mortgagee, its
successors and assigns all rents, issues and profits of any of the foregoing and
all proceeds of the conversion (whether voluntary or involuntary) of any of the
same into cash or liquidated claims, including, without limitation, proceeds of
insurance and condemnation awards.
TO HAVE AND TO HOLD the Property hereby conveyed, granted and its
successors and assigns forever, for the uses and purposes herein set forth.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES
2.1 In General. Mortgagor represents and warrants that it is the sole
lawful owner in fee simple of the Property, that its title in and to the
Property is free, clear and unencumbered except for those covenants and
restrictions of record approved by Mortgagee in a signed writing and attached
hereto as Exhibit B hereto and except for real estate taxes and assessments not
yet due and payable; that it has good legal right, authority, and full power to
sell and convey the same and to execute this Mortgage; that Mortgagor will make
any further assurances of title that Mortgagee may require; that Mortgagor will
warrant and defend the Property against all claims and demands whatsoever, and
that Mortgagor will keep and observe all of the terms of this Mortgage on
Mortgagor's part to be performed.
2.2 No Proceedings. Mortgagor represents, covenants and warrants that there
are no suits or proceedings pending, or, to the knowledge of Mortgagor,
threatened against or affecting Mortgagor that, if adversely determined, would
have an adverse effect on the Property or financial condition or business of
Mortgagor.
ARTICLE 3.
COVENANTS
Mortgagor hereby covenants and agrees with Mortgagee as follows:
3.1 Indebtedness. Mortgagor will promptly pay and perform, or promptly
cause to be paid and performed, when due, the following obligations (hereinafter
collectively called the "Indebtedness"):
(a) each and every term, provision, condition, obligation, covenant,
and agreement of Mortgagor set forth in this Mortgage, the Loan Documents, and
in any amendments, modifications or restatements to any of the foregoing;
(b) all future advances disbursed by Mortgagee to Mortgagor under
Section 6.12 (Future Advances) of this Mortgage; and
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(c) all loans, advances, indebtedness and each and every other
obligation or liability of Mortgagor owed to Mortgagee or any affiliate of Fifth
Third Bancorp, however created, of every kind and description, whether now
existing or hereafter arising and whether direct or indirect, primary or as
guarantor or surety, absolute or contingent, due or to become due, liquidated or
unliquidated, matured or unmatured, participated in whole or in part, created by
trust agreement, lease, overdraft, agreement, or otherwise, whether or not
secured by additional collateral, whether originated with Mortgagee or owed to
others and acquired by Mortgagee by purchase, assignment or otherwise, and
including, without limitation, all loans, advances, indebtedness and every
obligation arising under the Loan Documents, all obligations to perform or
forbear from performing acts, any and all Rate Management Obligations (as
defined in the Loan Documents), all amounts represented by letters of credit now
or hereafter issued by Mortgagee or any affiliate of Fifth Third Bancorp for the
benefit of or at the request of Mortgagor all agreements, instruments and
documents evidencing, guarantying, securing or otherwise executed in connection
with any of the foregoing, together with any amendments, modifications, and
restatements thereof, and all expenses and attorneys' fees incurred or other
sums disbursed by Mortgagee or any affiliate of Fifth Third Bancorp under this
Mortgage or any other document, instrument or agreement related to any of the
foregoing.
3.2 Impositions.
(a) Mortgagor will pay, or cause to be paid, when due all of the
following (hereinafter collectively called the "Impositions"): all real estate
taxes, personal property taxes, assessments, water and sewer rates and charges,
and all other governmental levies and charges, of every kind and nature
whatsoever, general and special, ordinary and extraordinary, which are assessed,
levied, confirmed, imposed or become alien upon or against the Property or any
portion thereof, and all taxes, assessments and charges upon the rents, issues,
income or profits of the Property, or which become payable with respect thereto
or with respect to the occupancy, use or possession of the Property, whether
such taxes, assessments or charges are levied directly or indirectly, Mortgagor
shall deliver proof of payment of all such Impositions to Mortgagee upon the
request of Mortgagee. Notwithstanding any provision to the contrary in this
Paragraph 3.2(a), any tax or special assessment which is alien on the Property
may be paid in installments, provided that each installment is paid on or prior
to the date when the same is due without the imposition of any penalty.
(b) At the sole election of Mortgagee, Mortgagor shall pay to
Mortgagee, with each payment that shall become due and payable pursuant to terms
of the Loan Documents, the appropriate portion of the annual amount estimated by
Mortgagee to be sufficient to pay the real estate taxes and assessments levied
against the Property and the insurance premiums for policies required under
Section 3.6 (Insurance) of this Mortgage, and such sums shall be held by
Mortgagee without interest in order to pay such taxes, assessments and insurance
premiums 30 days prior to their due date; provided that if an Event of Default
shall occur under this Mortgage, Mortgagee may elect to apply, to the full
extent permitted by law, any or all of said sums held pursuant to this Paragraph
3.26 in such manner as Mortgagee shall determine in its sole discretion.
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3.3 Compliance with Laws. Mortgagor will comply with all federal, state and
local laws, regulations and orders to which the Property or the activities
conducted on the Property are subject.
3.4 Condition of Property. Mortgagor will maintain the Property in good
order and condition and make all repairs necessary to that end, will suffer no
waste to the Property, and will cause all repairs and maintenance to the
Property to be done in a good and workmanlike manner.
3.5 Improvements. Mortgagor will not remove or materially change any
improvements once installed or placed on the Property, or suffer or permit
others to do so.
3.6 Insurance.
(a) Mortgagor at its sole cost and expense shall provide and keep in
force at all times for the benefit of Mortgagee, in accordance with the Loan
Documents with respect to the Property (with such deductibles as may be
satisfactory to Mortgagee, from time to time, in its reasonable discretion): (i)
insurance against loss of or damage to the Improvements by fire and other
hazards covered by so-called "extended coverage" insurance, with a replacement
cost endorsement, and such other casualties and hazards as Mortgagee shall
reasonably require from time to time; (ii) earthquake insurance; (iii) flood
insurance in the maximum available amount if the Improvements are located in a
flood hazard area; (iv) business interruption insurance; (v) boiler and
machinery insurance; (vi) comprehensive general public liability insurance
against claims for bodily injury, death, or property damage in customary and
adequate amounts, or, in Mortgagee's discretion, in such amounts as may be
reasonably satisfactory or desirable to Mortgagee, from time to time, in its
reasonable discretion; (vii) during the course of any construction or repair of
the Property, workers' compensation insurance for all employees involved in such
construction or repair, and builder's risk completed value insurance against
"all risks of physical loss covering the total value of work performed and
equipment, supplies and materials furnished, and containing the "permission to
occupy upon completion of work or occupancy" endorsement; and (viii) such other
insurance on the Property (including, without limitation, increases in amounts
and modifications of forms of insurance existing on the date hereof), as
Mortgagee may reasonably require from time to time. The policies of insurance
required by this Section 3.6(a) shall be with such companies, in such forms and
amounts, and for such periods, as Mortgagee shall require from time to time, and
shall insure the respective interests of Mortgagor and Mortgagee. Such insurance
may be provided in umbrella policies which insure any and all real or personal
property in which Mortgagor has an interest in addition to the Property, any
property encumbered by any other deed of trust or mortgage given by Mortgagor
for the benefit of Mortgagee, or any personal property in which a security
interest in favor of Mortgagee has been granted under the Loan Documents. The
insurance proceeds from all such policies of insurance (other than the proceeds
from the comprehensive general public liability policy required under clause
(vi) above) shall be payable to Mortgagee pursuant to a noncontributing first
mortgagee endorsement, satisfactory in form and substance, to Mortgagee.
Certificates of the original policies and renewals thereof covering the risks
provided by this Mortgage to be insured against, and bearing satisfactory
evidence of payment of all premiums thereon, shall be delivered to and held by
Mortgagee on demand. Without limiting the generality of the foregoing, Mortgagor
shall deliver to Mortgagee all insurance policies and certificates that
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are requested by Mortgagee. At least thirty (30) days prior to the expiration of
each policy required to be provided by Mortgagor, Mortgagor shall deliver
certificates of renewal policies to Mortgagee with appropriate evidence of
payment of premiums therefor. All insurance policies required by this Mortgage
shall (1) include effective waivers by the insurer of all rights of subrogation
against any named insured and any other loss payee; and (2) provide that any
losses shall be payable to Mortgagee notwithstanding:
(i) any act, failure to act or negligence of or violation of
warranties, declarations or conditions contained in such policy by any
named insured or other loss payee,
(ii) the occupation or use of the Improvements or Site for
purposes more hazardous than permitted by the terms thereof,
(iii) any foreclosure or other action or proceeding taken by
Mortgagee pursuant to any provisions of this Mortgage; or
(iv) any change in title to or ownership of the Property;
(3) provide that no cancellation, reduction in amount or material change in
coverage thereof shall be effective until at least thirty (30) days after
receipt by Mortgagee of written notice thereof, and (4) be satisfactory in all
other respects to Mortgagee. Mortgagor shall not permit any activity to occur or
condition to exist on or with respect to the Property that would wholly or
partially invalidate any of the insurance thereon. Mortgagor shall give prompt
written notice to Mortgagee of any damage to, destruction of, or other loss in
respect of the Property, irrespective of whether any such damage, destruction or
loss gives rise to an insurance claim. Mortgagor shall not carry additional
insurance in respect of the Property unless such insurance is endorsed in favor
of Mortgagee as loss payee.
(b) Mortgagor irrevocably makes, constitutes and appoints Mortgagee
(and all officers, employees or agents designated by Mortgagee) as Mortgagor's
true and lawful attorney-in-fact and agent, with full power of substitution, for
the purpose of making and adjusting claims under such policies of insurance;
endorsing the name of Mortgagor on any check, draft, instrument or other item or
payment for the proceeds of such policies of insurance and for making all
determinations and decisions with respect to such policies of insurance required
above or to pay any premium in whole or in part relating thereto. Mortgagee,
without waiving or releasing any obligations or default by Mortgagor hereunder,
may (but shall be under no obligation to do so) at any time maintain such action
with respect thereto which Mortgagee deems advisable. All sums disbursed by
Mortgagee in connection therewith, including attorneys' fees, court costs,
expenses and other charges relating thereto, shall be payable, on demand, by
Mortgagor to Mortgagee and shall be additional Indebtedness secured by this
Mortgage.
(c) All proceeds of the insurance required to be obtained by Mortgagor
hereunder, other than those relating to the comprehensive general public
liability insurance, shall be held in trust for and paid promptly to Mortgagee,
and Mortgagee may deduct from such proceeds any expenses, including, without
limitation, legal fees incurred by Mortgagee in connection with adjusting and
obtaining such proceeds (the balance remaining after such
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deduction being hereinafter referred to as the "Net Insurance Proceeds").
Mortgagee may, at its option, either: (1) apply the Net Insurance Proceeds in
reduction or satisfaction of all or any part of the Indebtedness, whether then
matured or not, in which event Mortgagor shall be relieved of its obligation to
maintain and restore the property relating to such proceeds to the extent that
Mortgagee so applies such Net Insurance Proceeds; or (2) release the Net
Insurance Proceeds to Mortgagor in whole or in part upon conditions satisfactory
to Mortgagee. Prior to the occurrence of an Event of Default, Mortgagor shall
have the right to adjust and compromise any such claims, subject to Mortgagee's
prior consent thereto, which consent shall not be unreasonably withheld,
provided that no such consent shall be required upon the occurrence of an Event
of Default under this Mortgage.
(d) The application of any insurance proceeds toward the payment or
performance of the Indebtedness shall not be deemed a waiver by Mortgagee of its
right to receive payment or performance of the rest of the Indebtedness in
accordance with the provisions of this Mortgage, the Loan Documents, and in any
amendments, modifications or restatements to any of the foregoing.
(e) In the event of a foreclosure under this Mortgage, the purchaser
of the Property shall succeed to all of the rights of Mortgagor, including any
right to unearned premiums, in and to all policies of insurance which Mortgagor
is required to maintain under this Section 3.6 and to all proceeds of such
insurance.
(f) Without limiting Mortgagee's rights under Section 3.9 of this
Mortgage, if Mortgagor shall fail to keep the Property insured in accordance
with this Mortgage and the other Loan Documents, Mortgagee may, but shall not be
obligated to, do so. Mortgagor shall reimburse Mortgagee on demand for amounts
incurred or expended therefor, with interest thereon pursuant to Section 3.9
hereof, and all such amounts incurred or expended, and all such interest
thereon, shall be additional Indebtedness of Mortgagor secured hereby.
3.7 Sale Transfer or Encumbrance.
(a) Mortgagor will not further mortgage, sell or convey, or grant a
deed of trust, pledge, or grant a security interest in any of the Property, or
contract to do any of the foregoing, or execute a land contract or installment
sales contract, enter into a lease (whether with or without option to purchase)
or otherwise dispose of, further encumber or suffer the encumbrance of any of
the Property, whether by operation of law or otherwise.
(b) Mortgagor shall pay and discharge promptly, at Mortgagor's cost
and expense, all liens, encumbrances, and charges upon any part of the Property
or any interest therein. If Mortgagor shall fail to discharge any such lien,
encumbrance, or charge, then, in addition to any other right or remedy of
Mortgagee, Mortgagee may, but shall not be obligated to, discharge the same,
either by paying the amount claimed to be due, or by procuring the discharge of
such lien by depositing in court a bond or the amount claimed or otherwise
giving security for such claim, or in such manner as is or may be prescribed by
law.
(c) Mortgagor will not institute or cause to be instituted any
proceedings that could change the permitted use of the Property from the use
presently
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zoned, and shall not grant any easements or licenses with respect to the
Property.
(d) If a portion of the Property, or any beneficial interest therein,
is sold, conveyed, transferred, encumbered, or full possessory rights therein
transferred, whether voluntarily, involuntarily, or by operation of law, then
the Mortgagee may declare all sums secured by this Mortgage, to be immediately
due and payable, whether or not the Mortgagee has consented or waived its rights
in connection with any previous transaction of the same or a different nature.
3.8 Eminent Domain.
(a) Mortgagor shall give immediate notice to Mortgagee upon
Mortgagor's obtaining knowledge of (i) any interest on the part of any person
possessing or who has expressed the intention to possess the power of eminent
domain to purchase or otherwise acquire the Property or (ii) that commencement
of any action or proceeding to take the Property by exercise of the right of
condemnation or eminent domain or of any action or proceeding to close or to
alter the grade of any street on or adjoining the Premises. At its option
Mortgagee may participate in any such actions or proceedings in the name of
Mortgagee or, whenever necessary, in the name of Mortgagor, and Mortgagor shall
deliver to Mortgagee such instruments as Mortgagee shall request to permit such
participation. Mortgagor shall not settle any such action or proceeding, whether
by voluntary sale, stipulation or otherwise, or agree to accept any award or
payment without the prior written consent of Mortgagee, which consent shall not
be unreasonably withheld. The total of all amounts awarded or allowed with
respect to all right, title and interest in and to the Property or the portion
or portions thereof taken or affected by such condemnation or eminent domain
proceeding and any interest thereon (herein collectively called the "Award") is
hereby assigned to, and shall be paid upon receipt thereof, to Mortgagee and the
amount received shall be retained and applied as provided in Paragraph 3.8(b)
below.
(b) Upon Mortgagee's receipt of any Award, Mortgagee may, at its
option, either: (i) retain and apply the Award toward the Indebtedness; or (ii)
subject to such escrow provisions as Mortgagee may require, pay the Award over
in whole or part to pay or reimburse Mortgagor for the cost of restoring or
reconstructing the Property remaining after such taking (the "Remaining
Property"). If Mortgagee elects to pay the Award, or any part thereof, over to
Mortgagor upon the completion of the restoration or reconstruction of the
Remaining Property, any portion of the Award not used for the restoration or
reconstruction of the Remaining Property shall, at the option of Mortgagee, be
applied in reduction of the Indebtedness; provided, however, that to the extent
that such portion of the Award shall exceed the amount required to satisfy in
full the Indebtedness, Mortgagee shall pay the amount of such excess to
Mortgagor or otherwise as required by law. In no event shall Mortgagee be
required to release this Mortgage until the Indebtedness is fully paid and
performed, nor shall Mortgagee be required to release from the lien of this
Mortgage any portion of the Property so taken until Mortgagee receives the Award
for the portion so taken.
(c) The application of the Award toward payment or performance of any
of the Indebtedness shall not be deemed a waiver by Mortgagee of its right to
receive payment or performance of the balance of the Indebtedness in accordance
with the provisions of this Mortgage, the Loan Documents, and in any amendments,
modifications or restatements to any of
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the foregoing. Mortgagee shall have the right, but shall be under no obligation,
to question or appeal the amount of the Award, and Mortgagee may accept same
without prejudice to the rights that Mortgagee may have to question or appeal
such amount. In any such condemnation or eminent domain action or proceeding
Mortgagee may be represented by attorneys selected by Mortgagee, and all sums
paid by Mortgagee in connection with such action or proceeding, including,
without limitation, attorneys' fees, court costs, expenses and other charges
relating thereto shall, on demand, be immediately due and payable from Mortgagor
to Mortgagee and the same shall be added to the Indebtedness and shall be
secured by this Mortgage.
(d) Notwithstanding any taking by condemnation or eminent domain,
closing of, or alteration of the grade of, any street or other injury to or
decrease in value of the Property by any public or quasi-public authority or
corporation, the Indebtedness shall continue to bear interest until the Award
shall have been actually received by Mortgagee, and any reduction in the
Indebtedness resulting from the application by Mortgagee of the Award shall be
deemed to take effect only on the date of such receipt thereof by Mortgagee.
3.9 Rights of Mortgagee. If Mortgagor fails to pay when due any Impositions
when so required by this Mortgage, or if an Event of Default occurs under this
Mortgage, Mortgagee at its option may pay such Impositions. If Mortgagor fails
to perform any of its obligations under this Mortgage with respect to the
Property, Mortgagee at its option may (but shall not be obligated to) perform
any such obligations of Mortgagor. Mortgagee may enter upon the Property for the
purpose of performing any such act, or to inspect the Property. All Impositions
paid by Mortgagee and all monies expended by Mortgagee in performing any such
obligations of Mortgagor (including legal expenses and disbursements) shall bear
interest at a floating rate per annum equal to six percent (6%) in excess of the
Prime Rate of Fifth Third Bank then in effect, and such interest shall be paid
by Mortgagor upon demand by Mortgagee and shall be additional Indebtedness
secured by this Mortgage.
3.10 Conflict Among Agreements. In the event of any conflict between the
provisions of this Mortgage and the provisions of the Loan Documents, the
provisions of the Loan Documents shall prevail.
3.11 Notifications. Mortgagor shall notify Mortgagee, promptly, of the
occurrence of any of the following:
(a) a fire or other casualty causing damage to the Property in excess
of $20,000;
(b) receipt of notice of condemnation of the Property or any part
thereof;
(c) receipt of notice from any governmental authority relating to the
structure, use or occupancy of the Property;
(d) receipt of any notice of alleged default from the holder of any
lien or security interest in the Property;
(e) the commencement of any litigation affecting the Property; or
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(f) any change in the occupancy of the Property.
ARTICLE 4.
EVENTS OF DEFAULT
Any of the following events shall be an Event of Default:
4.1 Cross-Default. An Event of Default occurs under the Loan Documents, or
in any amendments, modifications or restatements to any of the foregoing.
4.2 Breach of Covenants. Mortgagor defaults in the performance or
observance of any of the following covenants:
(a) to maintain in force the insurance required by Section 3.6
(Insurance) of this Mortgage;
(b) to comply with any of the notice requirements set forth in Section
3.6 (Insurance), Section 3.8 (Eminent Domain) or Section 3.11 (Notifications) of
this Mortgage; or
(c) any other covenant or agreement contained in this Mortgage and
such default continues for 30 days after notice thereof from Mortgagee.
4.3 Representation or Warranty Untrue. Any representation or warranty of
the Mortgagor under this Mortgage is untrue or misleading in any material
respect.
4.4 Foreclosure. A foreclosure proceeding (whether judicial or otherwise)
is instituted with respect to any mortgage or lien of any kind encumbering any
portion of the Property.
4.5 Limitation of Amount. Mortgagor limits or attempts to limit the loan
indebtedness secured by this Mortgage pursuant to Ohio Revised Code Section
5301.232.
4.6 Other Obligations. Any default occurs under any other obligation of
Mortgagor to Mortgagee or otherwise described herein as Indebtedness.
ARTICLE 5.
REMEDIES
5.1 Remedies. Upon the occurrence, and until the waiver by Mortgagee, of an
Event of Default:
(a) Mortgagee may declare the entire balance of the Indebtedness to be
immediately, due and payable, and upon any such declaration, the entire unpaid
balance of the Indebtedness shall become and be immediately due and payable,
without presentment, demand, protest, or further notice of any kind, all of
which are hereby expressly waived by Mortgagor.
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(b) Mortgagee may institute a proceeding or proceedings, judicial or
otherwise, for the complete or partial foreclosure of this Mortgage under any
applicable provision of law.
(c) Mortgagee may institute a proceeding or proceedings to eject
Mortgagor from possession of the Property and to obtain possession of the
Property by Mortgagee, with or without instituting a foreclosure proceeding.
(d) Mortgagee may sell (the power of sale, if permitted and provided
by applicable law, being expressly granted by Mortgagor to Mortgagee) the
Property, and all state, right, title, interest, claim and demand of Mortgagor
therein, and all rights of redemption thereof, at one or more sales, as, an
entirety or in parcels, with such elements of real and/or personal property, and
at such time and place and upon such terms as Mortgagee may deem expedient, or
as may be required by applicable law, and in the event of a sale, by foreclosure
or otherwise, of less than all of the Property, this Mortgage shall continue as
a lien and security interest on the remaining portion of the Property.
(e) Mortgagee may institute an action, suit or proceeding in equity
for the specific performance of any of the provisions contained in this
Mortgage, the Loan Documents, and in any amendments, modifications or
restatements to any of the foregoing.
(f) Mortgagee may apply for the appointment of a receiver, custodian,
trustee, liquidator or conservator of the Property to be vested with the fullest
powers permitted under applicable law, as a matter of right and without regard
to, or the necessity to disprove, the adequacy of the security for the
Indebtedness or the solvency of Mortgagor or any other person liable for the
payment of the Indebtedness, and Mortgagor and each such person liable for the
payment of the Indebtedness consents or shall be deemed to have consented to
such appointment.
(g) Mortgagee may enter upon the Property, and exclude Mortgagor and
its agents and servants wholly therefrom, without liability for trespass,
damages or otherwise, and take possession of all books, records and accounts
relating thereto and all other Property; and having and holding the same
Mortgagee may use, operate, manage, preserve, control and otherwise deal
therewith and conduct the business thereof, without interference from Mortgagor;
and upon each such entry and from time to time thereafter Mortgagee may, at the
expense of Mortgagor and the Property, without interference by Mortgagor and as
Mortgagee may deem advisable, (i) insure or reinsure the Property, (ii) make all
necessary or proper repairs, renewals, replacements, alterations, additions,
betterments and improvements thereto and thereon and (iii) in every such case in
connection with the foregoing have the right to exercise all rights and powers
of Mortgagor with respect to the Property, either in Mortgagor's name or
otherwise.
(h) Mortgagee may, with or without entering upon the Property,
collect, receive, xxx for and recover in its own name all rents and cash
collateral derived from the Property, and may deduct therefrom all costs,
expenses and liabilities of every character incurred by Mortgagee in controlling
the same and in using, operating, managing, preserving and controlling the
Property, and otherwise in exercising Mortgagee's rights under this Mortgage or
the Loan Documents, including, but not limited to, all amounts disbursed to pay
Impositions,
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insurance premiums and other charges in connection with the Property, as well as
compensation for the services of Mortgagee and its respective attorneys, agents
and employees.
(i) Mortgagee may release any portion of the Property for such
consideration as Mortgagee may require without, as to the remainder of the
Property, in any way impairing or affecting the position of Mortgagee with
respect to, the balance of the Property; and Mortgagee may accept by assignment,
pledge or otherwise any other property in place thereof as Mortgagee may require
without being accountable for so doing to any other lien holder.
(j) Mortgagee may take all actions, or pursue any other right or
remedy, permitted under the Uniform Commercial Code in effect in the State in
which the Property is located, under any other applicable law or in equity.
5.2 Mortgagee's Cause of Action. Mortgagee shall have the right, from time
to time, to bring an appropriate action to recover any sums required to be paid
by Mortgagor under the terms of this Mortgage or the Loan Documents, as the same
become due, without regard to whether or not the principal indebtedness or any
other sums secured by this Mortgage or the Loan Documents shall be due, and
without prejudice to the right of Mortgagee thereafter to institute foreclosure
or otherwise dispose of the Property or any part thereof or any other action,
for any default by Mortgagor existing at the time the earlier action was
commenced.
5.3 Costs and Expenses. There shall be allowed and included as additional
Indebtedness secured by the lien of this Mortgage, to the extent permitted by
law, all expenditures and expenses of Mortgagee for attorneys' fees, court
costs, appraisers' fees, sheriff's fees, documentary and expert evidence,
stenographers' charges, publication costs and such other costs and expenses as
Mortgagee may deem reasonably necessary to exercise any remedies or to evidence
to bidders at any sale of the Property the true condition of the title to or the
value of the Property. All such expenditures and expenses shall bear interest at
a floating rate per annum equal to six percent (6%) in excess of the Prime Rate
of Fifth Third Bank then in effect, and such interest shall be paid by Mortgagor
upon demand by Mortgagee and shall be additional Indebtedness secured by this
Mortgage.
5.4 Proceeds. The proceeds received by Mortgagee in any foreclosure sale of
the Property shall be distributed and applied in the following order of priority
first, on account of all costs and expenses incident to the foreclosure
proceedings, including all such items as are mentioned in Section 5.3; second,
to all other items which under the terms hereof constitute Indebtedness or
Impositions; and, third, any surplus to Mortgagor, its legal representatives or
assigns, or to third persons with rights to the proceeds, as their rights may
appear.
5.5 Revere. Without limiting the application of Section 5.1 of this
Mortgage, upon, or at any time after, the filing of a suit to foreclose this
Mortgage, Mortgagee shall be entitled to have a court appoint a receiver of the
Property. Such appointment may be made either before or after sale, without
notice to Mortgagor or any other person, without regard to the solvency of the
person or persons, if any, liable for the payment of the Indebtedness and
without regard to the then value of the Property, and Mortgagee may be appointed
as such receiver. The receiver shall have the power to collect the rents, issues
and profits of the Property during the pendency of such foreclosure suit, as
well as during any further times when Mortgagee, absent the intervention of
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such receiver, would be entitled to collect such rents, issues and profits, and
all other powers which may be necessary or are usual in such cases for the
protection, possession, control, management and operation of the Property during
the whole of such period. The court from time to time may authorize the receiver
to apply net income in the Receiver's hands in payment in whole or in part of
the Indebtedness, or in payment of any tax, assessment or other lien that may be
or become superior to the lien hereof or superior to a decree foreclosing this
Mortgage, provided such application is made prior to foreclosure sale.
5.6 Rights Cumulative. The rights of Mortgagee arising under the provisions
and covenants contained in each of the Mortgage and the Loan Documents shall be
separate, distinct and cumulative, and none of them shall be exclusive of the
others. In addition to the rights set forth in this Mortgage, or any other Loan
Documents, Mortgagee shall have all rights and remedies now or hereafter
existing, at law or in equity or by statute. Mortgagee may pursue its rights and
remedies concurrently or in any sequence, and no act of Mortgagee shall be
construed as an election to proceed under any one provision herein or in such
other documents to the exclusion of any other provision, anything herein or
otherwise to the contrary notwithstanding. If Mortgagor fails to comply with
this Mortgage, no remedy of law will provide adequate relief to Mortgagee, and
Mortgagee shall be entitled to temporary and permanent injunctive relief without
the necessity of proving actual damages.
5.7 No Merger. If Mortgagee shall at any time hereafter acquire title to
any of the Property, then the lien of this Mortgage shall not merge into such
title, but shall continue in full force and effect to the same extent as if the
Mortgagee had not acquired title to any of the Property. Furthermore, if the
estate of the Mortgagor shall be a leasehold, unless the Mortgagee shall
otherwise consent, the fee title of the Property shall not merge with such
leasehold, notwithstanding the union of said estates either in the ground lessor
or in the fee owner, or in a third party, by purchase or otherwise. If, however,
the Mortgagee shall be requested to and/or shall consent to such merger or such
merger shall nevertheless occur without its consent, then this Mortgage shall
attach to and cover and be a lien upon the fee title or any other estate in the
Property demised under the ground lease acquired by the fee owner and the same
shall be considered as mortgaged to the Mortgagee and the lien hereof spread to
cover such estate with the same force and effect as though specifically herein
granted.
5.8 Waivers of Mortgagor. Mortgagor hereby waives the benefit of any stay,
moratorium, valuation or appraisal law or judicial decision, any defects in any
proceeding instituted by Mortgagee with respect to this Mortgage or any Loan
Documents, and any right of redemption with respect to the Property. Mortgagor
waives any right to require marshalling of assets in connection with enforcement
of Obligations and any right to require the sale of the Property in parcels or
to select the order in which parcels are to be sold. Mortgagor waives the right
to all notices to which Mortgagor may otherwise be entitled, except those
expressly provided for herein.
ARTICLE 6.
MISCELLANEOUS
6.1 Uniform Commercial Code Security Agreement. This Mortgage is intended
to be a security agreement pursuant to the Uniform Commercial Code as adopted in
Ohio for any of
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the items specified above as part of the Property which may be subject to a
security interest pursuant to the applicable version of the Uniform Commercial
Code, and Mortgagor hereby grants Mortgagee a security interest in such items.
Mortgagor agrees that Mortgagee may file this mortgage instrument, or a
reproduction thereof, in the real estate records or other appropriate index, as
a financing statement for any of the items specified above as part of the
Property. Any reproduction of this Mortgage shall be sufficient as a financing
statement. In addition, Mortgagor agrees to execute and deliver to Mortgagee
upon Mortgagee's request any financing statements that Mortgagee may require to
perfect a security interest with respect to said items. Mortgagor shall pay all
costs of filing such financing statement and any extensions, renewals,
amendments and releases thereof, and shall pay all reasonable costs and expenses
of any record searches for financing statements Mortgagee may require. Without
the prior written consent of Mortgagee, Mortgagor shall not create or suffer to
be created pursuant to the Uniform Commercial Code any other security interest
in such items, including replacements and additions thereto. Upon any Event of
Default under this Mortgage, Mortgagee shall have the remedies of a secured
party under the Uniform Commercial Code and, at Mortgagee's option, may also
invoke the remedies provided in this Mortgage. In exercising any of said
remedies, Mortgagee may proceed against the items of real property and any items
of personal property specified above as part of the Property separately or
together and in any order whatsoever, without in any way affecting the
availability of Mortgagee's remedies under the Uniform Commercial Code or of the
remedies in this Mortgage.
6.2 Waiver. No delay or omission by Mortgagee to exercise any right shall
impair any such right or be a waiver thereof, but any such right may be
exercised from time to time and as often as may be deemed expedient. Each waiver
must be in writing and executed by Mortgagee to be effective, and a waiver on
one occasion shall be limited to that particular occasion.
6.3 Amendments in Writing. No change, amendment, or modification hereof, or
any part, hereof, shall be valid unless in writing and signed by the parties
hereto or their respective successors and assigns.
6.4 Notices. All notices, demands and requests given or required to be
given by either party hereto to the other party shall be in writing and shall be
deemed to have been properly given if sent by U.S. registered or certified mail,
postage prepaid, return receipt requested, or by overnight delivery service,
addressed as follows:
To Mortgagor: DENTAL CARE PLUS, INC.
000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
To Mortgagee: FIFTH THIRD BANK
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx, 00000
Attention: Commercial Real Estate Department
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6.5 Interpretation. The titles to the Sections and Paragraphs hereof are
for reference only and do not limit in any way the content thereof. Any words
herein which are used in one gender shall be read and construed to mean or
include the other gender wherever they would so apply. Any words herein which
are used in the singular shall be read and construed to mean and to include the
plural wherever they would so apply, and vice versa or to such other address as
Mortgagor or Mortgagee may from time to time designate by written notice.
6.6 Covenant Running With the Land. Any act or agreement to be done or
performed by Mortgagor shall be construed as a covenant running with the land
and shall be binding upon Mortgagor and its successors and assigns as if they
had personally made such agreement.
6.7 Complete Agreement: Counterparts. This Mortgage and the Exhibits are
the complete agreement of the parties hereto and supersede all previous
understandings relating to the subject matter hereof. This Mortgage may be
amended only by an instrument in writing which explicitly states that it amends
this Mortgage, and is signed by the party against whom enforcement of the
amendment is sought. This Mortgage may be executed in several counterparts, each
of which shall be regarded as an original and all of which shall constitute but
one and the same instrument.
6.8 Validity. The provisions of this Mortgage are severable. If any term,
covenant or condition of this Mortgage shall be held to be invalid, illegal or
unenforceable in any respect, the remainder of this Mortgage shall not be
invalidated thereby, and this Mortgage shall be construed without such
provision.
6.9 Governing Law. This Mortgage for all purposes shall be construed and
enforced in accordance with the domestic laws of the State of Ohio.
6.10 Binding Effect; Assignment. This Mortgage shall be binding upon and
inure to the benefit of the respective legal representatives, successors and
assigns of the parties hereto; however, Mortgagor may not assign any of its
rights or delegate any of its obligations hereunder, Mortgagee may assign this
Mortgage to any other person, firm, or corporation provided all of the
provisions hereof shall continue in force and effect and, in the event of such
assignment, any advances made by any assignee shall be deemed made in pursuance
and not in modification hereof and shall be evidenced and secured by the Loan
Documents and this Mortgage.
6.11 Interest. In no event shall the interest rate and other charges
related to the Indebtedness exceed the highest rate permissible under any law
which a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that a court determines that Mortgagee has
received interest and other charges hereunder in excess of the highest
permissible rate applicable hereto, such excess shall be deemed received on
account of, and shall automatically be applied to reduce, the principal balance
of the Indebtedness, and the provisions hereof shall be deemed amended to
provide for the highest permissible rate. If there is no Indebtedness
outstanding, Mortgagee shall refund to Mortgagor such excess.
6.12 O.R.C. 1311.14. This Mortgage secures unpaid balances of obligatory
loan advances to be made by Mortgagee to Mortgagor pursuant to the terms and
provisions of the Loan Documents. The Loan Documents obligate Mortgagee to
advance Mortgagor certain sums
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under definite and certain conditions, in a particular manner and at the times
set forth therein, the total outstanding indebtedness of which, at any one time,
is equal to the amount of the debt secured by this Mortgage. Mortgagee is
authorized and empowered to do all things provided to be done by a Mortgagee
under Section 1311.14 of the Ohio Revised Code and any amendments or supplements
thereto. This Mortgage is made pursuant to Section 5301.232 and Chapter 1309,
including Section 1309.32, of the Ohio Revised Code.
6.13 Future Advances. The parties hereto intend and agree that this
Mortgage shall secure unpaid balances of any loan advances, whether obligatory
or not, and whether made pursuant to the Loan Documents or not, made by
Mortgagee after this Mortgage is delivered to the Recorder for record to the
extent that the total unpaid loan indebtedness, exclusive of interest thereon,
does not exceed the maximum amount of unpaid loan indebtedness which may be
outstanding at any time, which is One Million Eight Hundred Dollars
($1,800,000), Mortgagor further covenants and agrees to repay all such loan
advances with interest, and that the covenants contained in this Mortgage shall
apply to such loan advances as well.
6.14 Mortgagee's Status. Mortgagor, hereby acknowledges and agrees that the
undertaking of Mortgagee under this Mortgage is limited as follows:
Mortgagee shall not act in any way as the agent for or trustee of
Mortgagor. Mortgagee does not intend to act in any way for or on behalf of
Mortgagor with respect to disbursement of the proceeds of the indebtedness
secured hereby. Mortgagee's intent in imposing the requirements set forth herein
and in the Loan Documents is that of a lender protecting the priority of its
mortgage and the value of its security. Mortgagee assumes no responsibility for
the completion of any Improvements erected or to be erected upon the Property,
the payment of bills or any other details in connection with the Property, any
plans and specifications in connection with the Property, or Mortgagor's
relations with any contractors. This Mortgage is not to be construed by
Mortgagor or anyone famishing labor, materials, or any other work or product for
improving the Property as an agreement upon the part of the Mortgagee to assure
anyone that such person will be paid for famishing such labor, materials, or any
other work or product; any such person must look entirely to Mortgagor for such
payment. Mortgagee assumes no responsibility for the architectural or structural
soundness of any improvements on or to be erected upon the Property or for the
approval of any plans and specifications in connection therewith or for any
improvements as finally completed.
ARTICLE 7.
DEFEASANCE
7.1 Defeasance. If Mortgagor shall keep, observe and perform all of the
covenants and conditions of this Mortgage on its part to be kept and performed
and shall pay and perform, or cause to be paid and performed, all of the
Indebtedness whether now outstanding or hereafter arising, including all
extensions and renewals thereof, and all of the other Indebtedness, then
Mortgagee shall release this Mortgage upon the request and at the expense of
Mortgagor, otherwise this Mortgage shall remain in full force and effect.
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IN WITNESS WHEREOF, this instrument has been executed by Mortgagor on the
date first written above.
MORTGAGOR:
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Its: President
Printed Name: Xxxxxxx X. Xxxx
Its: President & CEO
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EXHIBIT A
PROPERTY DESCRIPTION
A-1
