LOAN NO. 400030964
SECOND SECURITY AGREEMENT
(Hotel/Motel)
THIS SECOND SECURITY AGREEMENT (as amended, supplemented or modified from
time to time, this "Security Agreement") is made as of August 14, 1998, by JAGI
▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇, LLC, a Delaware limited liability company ("Borrower"), and
AMRESCO CAPITAL, L.P., a Delaware limited partnership ("Lender").
RECITALS:
A. Borrower is indebted unto the Lender under that certain Note, dated of
even date herewith, made by Borrower and payable to the order of Lender in the
principal amount of $13,300,000 (as now or hereafter amended, restated, modified
substituted, or replaced, the "First Note").
B. The First Note is secured, inter alia, by a Mortgage and Security
Agreement dated of even date herewith, executed by Borrower in favor of Lender
and filed for record in Summit County, Ohio (as now or hereafter amended,
restated, modified, substituted, or replaced, the "First Mortgage"), and by a
Security Agreement, dated of even date herewith, executed by Borrower in favor
or Lender (as now or hereafter amended, restated, modified, substituted, or
replaced, the "First Security Agreement").
C. Lender, Borrower, JAGI Cleveland - Independence, LLC, an Ohio limited
liability company ("JAGI Independence"), JAGI Montrose West, LLC, an Ohio
limited liability company ("JAGI Montrose"), and JAGI North Canton, LLC, an Ohio
limited liability company ("JAGI Canton"), have entered into a Loan Agreement,
also dated of even date herewith (the "Loan Agreement"), whereby Lender agreed
to lend an aggregate $44,000,000 to Borrower, JAGI Independence, JAGI Montrose,
and JAGI Canton, evidenced by the First Note and by three other notes (the
"Other Notes"), all of even date herewith, payable to the order of Lender in the
aggregate principal amount of $30,700,000, one being made by JAGI Independence
in the principal amount of $21,800,000, one being made by JAGI Montrose in the
principal amount of $3,5000,000, and one being made by JAGI Canton in the
principal amount of $5,400,000.
D. Lender has required Borrower to grant this Security Agreement as a
condition to making the $44,000,000 loan pursuant to the Loan Agreement.
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
Section I.1. Defined Terms. As used in this Security Agreement, terms
defined in the Note shall have their defined meanings when used herein, and the
following terms shall have the following meanings:
"Accounts" means all accounts now or hereafter owing to Borrower, and all
accounts receivable, contract rights, documents, instruments or chattel paper
representing amounts payable or monies due or to become due to Borrower in
connection with the ownership, operation and/or maintenance of the Mortgaged
Property, including, without limitation, all revenues and credit card receipts
collected from guest rooms, restaurants, bars, banquet rooms, meeting rooms, and
recreational facilities, all receivables, customer obligations, installment
payment obligations and other obligations now existing or hereafter arising or
created out of the sale, lease, sublease, license, concession or other grant of
the right of the use and occupancy of property or rendering of services by
Borrower or any operator or manager of the hotel or the commercial space located
on the Mortgaged Property or acquired from others (including, without
limitation, from the rental of any office space, retail space, guest rooms or
other space, halls, stores, and offices, and deposits securing reservations of
such space), license, lease, sublease and concession fees and rentals, health
club membership fees, food and beverage wholesale and retail sales, service
charges, vending machine sales and proceeds, if any, from business interruption
or other loss of income insurance, or arising from the sale of Inventory or the
rendition of services in the ordinary course of business or otherwise (whether
or
not earned by performance), together with all Inventory returned by or reclaimed
from customers wherever such Inventory is located, and all guaranties,
securities and liens held for the payment of any such account, account
receivable, contract right, document, instrument or chattel paper.
"Account Debtor" means, with respect to any Receivable or Other Intangible,
any Person (as defined in the UCC) obligated to make payment thereunder,
including without limitation any account debtor thereon.
"Business Day" means a day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the laws of the state where
the Mortgaged Property is located.
"Collateral" has the meaning assigned to it in Section 2.1 of this Security
Agreement.
"Franchise Agreement" means all rights of Borrower pursuant to that certain
Holiday Inn Hotel Change of Ownership Agreement regarding the Mortgaged Property
dated of even date herewith, between Borrower and Holiday Hospitality
Franchising, Inc.
"General Intangibles" shall have the meaning assigned to it under Section
9-106 of the UCC.
"Inventory" means all inventory and equipment now owned or hereafter
acquired by Borrower in connection with the ownership, operation and/or
maintenance of the Mortgaged Property, including (i) all goods and other
personal property which are held for sale or lease or are furnished or are to be
furnished under a contract of service or which constitute raw materials, work in
process or materials used or consumed or to be used or consumed in Borrower's
business, (ii) all inventory, wherever located, evidenced by negotiable and
non-negotiable documents of title, warehouse receipts and bills of lading, (iii)
all of Borrower's rights in, to and under all purchase orders now owned or
hereafter received or acquired by it for goods or services and, (iv) all rights
of Borrower as an unpaid seller, including rescission, replevin, reclamation and
stopping in transit.
"Obligations" means (i) the Debt and all amounts now or hereafter payable
by Borrower to Lender on the Note, and (ii) all other obligations or liabilities
now or hereafter payable by Borrower to Lender pursuant to, under, arising out
of or in connection with this Security Agreement or any other Loan Document.
"Other Intangibles" means all documents, instruments, chattel paper, money
and General Intangibles relating to the ownership, operation and/or maintenance
of the Mortgaged Property now owned or hereafter acquired by Borrower including,
without limitation, to the extent not included in accounts, all rights to
payment from guests and customers, all customer and guest lists, federal and
state tax refunds, reversionary interests in pension plan assets, trademarks,
patents, licenses, copyrights and other rights in intellectual property, other
than Accounts, and, to the extent assignable, all permits, business licenses,
liquor licenses and franchise agreements.
"Proceeds" means all proceeds, including (i) whatever is received upon any
collection, exchange, sale or other disposition of any of the Collateral and any
property into which any of the Collateral is converted, whether cash or
non-cash, including without limitation all cash on hand, income and other
amounts now or hereafter generated from the operation, use or maintenance of the
Mortgaged Property and all cash or cash equivalents to cover pre-paid
reservations related to the Mortgaged Property, (ii) any and all payments or
other property (in any form whatsoever) made or due and payable on account of
any insurance, indemnity, warranty or guaranty payable to Borrower with respect
to any of the Collateral, (iii) any and all payments (in any form whatsoever)
made or due and payable in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral by any
governmental body, authority, bureau or agency (or any person, corporation,
agency, authority or other entity acting under color of any governmental
authority), and (iv) any and all other amounts from time to time paid or payable
under or in connection with any of the Collateral.
"Property Management Contract" means all rights of Borrower pursuant to
that certain Management Agreement regarding the Mortgaged Property dated as of
July 20,1998, between Borrower and Janus American Group, Inc.
"UCC" means at any time the Uniform Commercial Code as the same may from
time to time be in effect in the state of the location of the Mortgaged
Property, provided that, if, by reason of mandatory provisions of law, the
validity or perfection of any security interest granted herein is governed by
the Uniform Commercial Code as in
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effect in a jurisdiction other such state then, as to the validity or perfection
of such security interest, "UCC" shall mean the Uniform Commercial Code in
effect in such other jurisdiction.
Section I.2. UCC Definitions. The uncapitalized terms "account," "account
debtor," "chattel paper," "contract right," "document," "warehouse receipt,"
"▇▇▇▇ of lading," "document of title," "instrument," "inventory," "equipment,"
"general intangible," "money," "proceeds" and "purchase money security interest"
as used in Section 1.1 or elsewhere in this Security Agreement have the meanings
of such terms as defined in the UCC.
Section I.3. Rules of Construction.
(a) Except as otherwise specified herein, all references in this Security
Agreement (i) to any person shall be deemed to include such person's successors,
transferees and assignees, but only, in the case of transferees and assignees of
the parties to this Security Agreement, to the extent the applicable transfer or
assignment complies with the provisions of this Security Agreement, and (ii) to
any applicable law defined or referred to herein shall be deemed a reference to
such applicable law as the same may have been or may be amended or supplemented
from time to time.
(b) When used in this Security Agreement, the words "herein," "hereof" and
"hereunder" and words of similar import shall refer to this Security Agreement
as a whole and not to any provision of this Security Agreement, and the words
"Section," "Schedule" and "Exhibit" shall refer to Sections of and Schedules and
Exhibits to this Security Agreement unless otherwise specified.
(c) Whenever the context so requires, each gender includes the other
gender, and the singular number includes the plural, and vice versa.
(d) When used in this Security Agreement in conjunction with a reference to
the Note or any other obligation, or any document or agreement evidencing or
securing one or more of such obligations, the terms "related" and "relate to"
shall refer to events, circumstances or conditions directly affecting or
directly applying to the particular maker, endorser, guarantor, grantor or
pledgor of collateral with respect to the Debt or such other obligation, as the
case may be.
ARTICLE II
SECURITY INTERESTS
Section II.▇. ▇▇▇▇▇ of Security Interests. To secure the due and punctual
payment of all Obligations and in order to induce Lender to make the loan
evidenced by the Note, Borrower hereby grants to Lender a security interest in
all of Borrower's right, title and interest in, to and under the following,
whether now existing or hereafter acquired (all of which are herein collectively
called the "Collateral"):
(a) all Accounts;
(b) all Other Intangibles;
(c) all Inventory;
(d) the Franchise Agreement;
(e) the Property Management Contract;
(f) to the extent not included in the foregoing, all other personal
property related to the ownership, operation and/or maintenance of the
Mortgaged Property, whether tangible or intangible, and wherever located,
including, but not limited to, the balance of every deposit account of
Borrower relating to the ownership, operation and/or maintenance of the
Mortgaged Property owned by Borrower now or hereafter existing with any
bank and all monies of Borrower and all rights to payment of money of
Borrower;
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(g) to the extent not included in the foregoing, all of Borrower's
books, ledgers and records and all computer programs, tapes, discs, punch
cards, data processing software, transaction files, master files and
related property and rights (including computer and peripheral equipment)
necessary or helpful in enforcing, identifying or establishing any item of
Collateral, whether maintained by Borrower or a management company; and
(h) to the extent not otherwise included, all Proceeds and products of
any or all of the foregoing, whether existing on the date hereof or arising
hereafter.
Section II.2. Continuing Liability of Borrower. Anything herein to the
contrary notwithstanding, Borrower shall remain liable to observe and perform
all the terms and conditions to be observed and performed by it under any
contract, agreement, warranty or other obligation with respect to the
Collateral, and shall do nothing to impair the security interests herein
granted. Lender shall not have any obligation or liability under any such
contract, agreement, warranty or obligation by reason of or arising out of this
Security Agreement or the receipt by Lender of any payment relating to any
Collateral, nor shall Lender be required to perform or fulfill any of the
obligations of Borrower with respect to the Collateral, to make any inquiry as
to the nature or sufficiency of any payment received by it or the sufficiency of
the performance of any party's obligations with respect to any Collateral.
Furthermore, Lender shall not be required to file any claim or demand to collect
any amount due or to enforce the performance of any party's obligations with
respect to the Collateral.
Section II.3. Sales and Collections.
(a) Borrower is authorized (i) to sell in the ordinary course of its
business for fair value and on an arm's-length basis any of its Inventory
normally held by it for such purpose and (ii) to use and consume, in the
ordinary course of its business, any raw materials, supplies and materials
normally held by it for such purpose. Lender may upon the occurrence of any
Event of Default (as defined in the Mortgage), without cause or notice, curtail
or terminate such authority at any time.
(b) Borrower is authorized to collect amounts owing to it with respect to
the Collateral. However, Lender may at any time, after an Event of Default shall
have occurred, notify Account Debtors obligated to make payments under any or
all Accounts or Other Intangibles that Lender has a security interest in such
Accounts or Other Intangibles and that all payments by such Account Debtors with
respect to same shall be made directly to Lender. Upon the request of Lender at
any time, Borrower will so notify such Account Debtors. Borrower will use all
reasonable efforts to cause each account debtor to comply with the foregoing
instruction. In furtherance of the foregoing, Borrower authorizes Lender (i) to
ask for, demand, collect, receive and give acquittances and receipts for any and
all amounts due and to become due under any Collateral and, in the name of
Borrower or its own name or otherwise, (ii) to take possession of, endorse and
collect any checks, drafts, notes, acceptances or other instruments for the
payment of moneys due under any Collateral, and (iii) to file any claim or take
any other action in any court of law or equity or otherwise which it may deem
appropriate for the purpose of collecting any amounts due under any Collateral.
Lender shall have no obligation to obtain or record any information relating to
the source of such funds or the obligations in respect of which payments have
been made.
Section II.4. Verification of Accounts. Lender shall have the right to make
test verifications of Accounts in any manner and through any medium that it
considers advisable, and Borrower agrees to furnish all such assistance and
information as Lender may require in connection therewith. Borrower shall
provide such information concerning the Accounts as Lender may hereafter from
time to time reasonably request.
Section II.5. Release of Collateral.
(a) Borrower may sell or realize upon or transfer or otherwise dispose of
Collateral as permitted by Section 4.12, and the security interests of Lender in
such Collateral so sold, realized upon or disposed of (but not in the Proceeds
arising from such sale, realization or disposition) shall cease immediately upon
such sale, realization or disposition, without any further action on the part of
Lender. Lender, if requested in writing by Borrower but at the expense of
Borrower, is hereby authorized and instructed to deliver to the Account Debtor
or the purchaser or other transferee of any such Collateral a certificate
stating that Lender no longer has a security interest therein, and such Account
Debtor or such purchaser or other transferee shall be entitled to rely
conclusively on such certificate for any and all purposes.
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(b) Upon the payment in full of all of the Obligations, Lender will (as
soon as reasonably practicable after receipt of notice from Borrower requesting
the same but at the expense of Borrower) send Borrower, for each jurisdiction in
which a UCC financing statement is on file to perfect the security interests
granted to Lender hereunder, a termination statement to the effect that Lender
no longer claims a security interest under such financing statement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants that, except as otherwise disclosed to or
known by Lender as of the date of hereof:
Section III.1. Validity of Security Agreement; Consents. The execution,
delivery and performance of this Security Agreement and the creation of the
security interests provided for herein (i) do not violate any law or regulation
or any order or decree of any court or governmental instrumentality applicable
to Borrower, (ii) do not conflict with or result in a breach of, or constitute a
default under, any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which Borrower is a party or by which it or any of its properties
is bound, (iii) do not result in the creation or imposition of any lien upon any
property of Borrower other than in favor of Lender, and (iv) do not require the
consent or approval of any governmental body, agency or official or other person
other than those that have been obtained. This Security Agreement has been duly
executed and delivered by Borrower and constitutes the legal, valid and binding
obligation of Borrower, enforceable against it in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
the enforceability of creditors' rights generally and by general provisions of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
Section III.2. Title to Collateral. Except for the security interests
granted to Lender pursuant to this Security Agreement, Borrower is the sole
owner of each item of the Collateral, having good and marketable title thereto,
free and clear of any and all liens, encumbrances, security interests and claims
of others.
Section III.3. Validity, Perfection and Priority of Security Interests.
(a) By complying with Section 4.1, Borrower will have created a valid
security interest in favor of Lender in all existing Collateral and in all
identifiable Proceeds of such Collateral, which security interest (except in
respect of motor vehicles for which the exclusive manner of perfecting a
security interest therein is by noting such security interest on the certificate
of title in accordance with local law) would be prior to the claims of a trustee
in bankruptcy under Section 544(a) of the United States Bankruptcy Code.
Continuing compliance by Borrower with the provisions of Section 4.2 will also
(i) create valid security interests in all Collateral acquired after the date
hereof and in all identifiable Proceeds of such Collateral and, (ii) cause such
security interests in all Collateral and in all Proceeds which are (A)
identifiable cash Proceeds of Collateral covered by financing statements
required to be filed hereunder, (B) identifiable Proceeds in which a security
interest may be perfected by such filing under the UCC, and (C) any Proceeds in
the Cash Collateral Account to be duly perfected under the UCC, in each case
prior to the claims of a trustee in bankruptcy under the United States
Bankruptcy Code.
(b) The security interests of Lender in the Collateral rank first in
priority, second only to the rights of the secured party under the First
Security Agreement. Other than financing statements or other similar documents
perfecting the security interests or deed of trust liens of Lender, no financing
statements, deeds of trust, mortgages or similar documents covering all or any
part of the Collateral are on file or of record in any government office in any
jurisdiction in which such filing or recording would be effective to perfect a
security interest in such Collateral, nor is any of the Collateral in the
possession of any Person (other than Borrower) asserting any claim thereto or
security interest therein.
Section III.4. Enforceability of Accounts and Other Intangibles. To the
best knowledge of Borrower, each Receivable and Other Intangible is a valid and
binding obligation of the related Account Debtor in respect thereof, enforceable
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy,
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insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general provisions of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law), and complies with any applicable legal requirements.
Section III.5. Place of Business; Location of Collateral. Schedule 1
correctly sets forth Borrower's chief executive office and principal place of
business and the offices of Borrower where records concerning Accounts and Other
Intangibles are kept. Schedule 2 correctly sets forth the location of all
Inventory, other than rolling stock, aircraft, goods in transit and Inventory
sold in the ordinary course of business as permitted by Section 4.12 of this
Security Agreement. Except as otherwise specified in Schedule 2, all Inventory
has been located at the address specified on Schedule 2 at all times during the
four-month period prior to the date hereof while owned by Borrower. No Inventory
is evidenced by a negotiable document of title, warehouse receipt or ▇▇▇▇ of
lading. No non-negotiable document of title, warehouse receipt or ▇▇▇▇ of lading
has been issued to any person other than Borrower, and Borrower has retained
possession of all of such non-negotiable documents, warehouse receipts and bills
of lading. No amount payable under or in connection with any of the Collateral
is evidenced by promissory notes or other instruments. The real estate listed in
Schedule 3 constitutes all existing real estate to which any of the Collateral
is related.
Section III.6. Trade Names. Any and all trade names, division names,
assumed names or other names under which Borrower transacts, or within the six
(6)-month period prior to the date hereof has transacted, business are specified
on Schedule 4.
ARTICLE IV
COVENANTS
Borrower covenants and agrees with Lender that until the payment in full of
all Obligations and until there is no commitment by Lender to make further
advances, incur obligations or otherwise give value, Borrower will comply with
the following.
Section IV.1. Perfection of Security Interests. Borrower will, at it
expense, cause all filings and recordings and other actions specified on
Schedule 5 to have been completed on or prior to the date of the Note.
Section IV.2. Further Actions.
(a) At all times after the date hereof and upon Lender's request, Borrower
will, at its expense, comply with the following:
i) as to all Accounts, Other Intangibles and Inventory, it will cause
UCC financing statements and continuation statements to be filed and to be
on file in all applicable jurisdictions as required to perfect the security
interests granted to Lender hereunder, to the extent that applicable law
permits perfection of a security interest by filing under the UCC;
ii) as to all Proceeds, it will cause all UCC financing statements and
continuation statements filed in accordance with clause (i) above to
include a statement or a checked box indicating that Proceeds of all items
of Collateral described therein are covered;
iii) upon the request of Lender, it will ensure that the provisions of
Section 4.4 are complied with; and
iv) as to any amount payable under or in connection with any of the
Collateral which shall be or shall become evidenced by any promissory note
or other instrument, Borrower will immediately pledge and deliver such note
or other instrument to Lender as part of the Collateral, duly endorsed in a
manner satisfactory to Lender.
(b) Borrower will, from time to time and at its expense, execute, deliver,
file or record such financing statements pursuant to the Uniform Commercial
Code, applications for certificates of title and such other statements,
assignments, instruments, documents, agreements or other papers and take any
other action that Lender
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may reasonably request, in order to create, preserve, perfect, confirm or
validate the security interests, to enable Lender to obtain the full benefits of
this Security Agreement or to enable it to exercise and enforce any of its
rights, powers and remedies hereunder, including, without limitation, its right
to take possession of the Collateral, and will use its best efforts to obtain
such waivers from landlords and mortgagees as Lender may request.
(c) To the fullest extent permitted by law, Borrower authorizes Lender to
sign and file financing and continuation statements and amendments thereto with
respect to the Collateral without its signature thereon.
Section IV.3. Change of Name, Identity or Structure. Borrower will not
change its name, will not conduct its business under any trade, assumed or
fictitious name unless it shall have given Lender at least thirty (30) days'
prior written notice thereof and shall have taken all action (or made
arrangements to take such action substantially simultaneously with such change
if it is impossible to take such action in advance) necessary or reasonably
requested by Lender to amend any financing statement or continuation statement
relating to the security interests granted hereby in order to preserve such
security interests and to effectuate or maintain the priority thereof against
all Persons.
Section IV.4. Place of Business and Collateral. Borrower will not change
the location of (i) its place of residence and (ii) the office or other
locations where it keeps or holds any Collateral or any records relating thereto
from the applicable location listed on Schedule 1 or 2 hereto unless, prior to
such change, it notifies Lender of such change, makes all UCC filings required
by Section 4.2 and takes all other action that Lender may reasonably request to
preserve, perfect, confirm and protect the security interests granted hereby.
Borrower will in no event change the location of any Collateral if such change
would cause the security interest granted hereby in such Collateral to lapse or
cease to be perfected. Borrower will at all times maintain its principal place
of business in the state of the location of the Mortgaged Property.
Section IV.5. Maintenance of Records. Borrower will keep and maintain at
its own cost and expense complete books and records relating to the Collateral
which are satisfactory to Lender including, without limitation, a record of all
payments received and all credits granted with respect to the Collateral and all
of its other dealings with the Collateral. Borrower will ▇▇▇▇ its books and
records pertaining to the Collateral to evidence this Security Agreement and the
security interests granted hereby. For Lender's further security, Borrower
agrees that Lender shall have a special property interest in all of Borrower's
books and records pertaining to the Collateral and Borrower shall deliver and
turn over any such books and records, or copies thereof, to Lender or to its
representatives at any time on demand of the Lender.
Section IV.6. Compliance with Laws, etc. Borrower will comply, in all
material respects, with all acts, rules, regulations, orders, decrees and
directions of any governmental body, agency or official applicable to the
Collateral or any part thereof or to the operation of the Mortgaged Property
except to the extent that the failure to comply would not have a material
adverse effect on the financial or other condition of the Mortgaged Property;
provided, however, that Borrower may contest any act, regulation, order, decree
or direction in any reasonable manner which shall not in the sole opinion of
Lender adversely affect Lender's rights or the first priority of its security
interest in the Collateral.
Section IV.7. Payment of Taxes, etc. Borrower will pay promptly when due,
all taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect of its income or profits therefrom, as well as all
claims of any kind (including claims for labor, materials and supplies), except
that no such charge need be paid if (i) the validity thereof is being contested
in good faith by appropriate proceedings, and (ii) such charge is adequately
reserved against in accordance with generally accepted accounting principals,
consistently applied.
Section IV.8. Compliance with Terms of Accounts, Contracts and Licenses.
Borrower will perform and comply in all material respects with all of its
obligations under and, all agreements relating to the Collateral to which it is
a party or by which it is bound.
Section IV.9. Limitation on Liens on Collateral. Except as to any liens now
in existence and known to Lender, Borrower will not create, permit or suffer to
exist, and will defend the Collateral and Borrower's rights with respect thereto
against and take such other action as is necessary to remove, any Lien, security
interest, encumbrance, or claim in or to the Collateral other than the security
interests created hereunder.
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Section IV.10. Limitations on Modifications of Accounts and Other
Intangibles; No Waivers or Extensions. Borrower will not (i) amend, modify,
terminate or waive any provision of any material Receivable or Other Intangible
in any manner which might have a materially adverse effect on the value of such
Receivable or Other Intangible as Collateral, (ii) fail to exercise promptly and
diligently each and every material right which it may have under each Receivable
and Other Intangible, or (iii) fail to deliver to Lender a copy of each material
demand, notice or document received by it relating in any way to any Receivable
or Other Intangible. Borrower will not, without Lender's prior written consent,
grant any extension of the time of payment of any material Receivable or amounts
due under any material Other Intangible, compromise, compound or settle the same
for less than the full amount thereof, release, wholly or partly, any person
liable for the payment thereof or allow any credit or discount whatsoever
thereon other than trade discounts granted in the normal course of business,
except such as in the reasonable judgment of Borrower are advisable to enhance
the collectibility thereof.
Section IV.11. Maintenance of Insurance. Borrower will maintain insurance
policies with financially sound insurance companies licensed to do business in
Ohio (i) insuring the Inventory against loss by fire, explosion, theft and such
other casualties as are usually insured against by companies engaged in the same
or similar business for an amount satisfactory to Lender, and (ii) insuring
Borrower and Lender against liability for personal injury arising from, and
property damage relating to, such Inventory, such policies to be in such form
and to cover such amounts as set forth in the Mortgage, with losses payable to
Borrower and Lender as their respective interests may appear. Borrower shall, if
so requested by Lender, deliver to Lender as often as Lender may reasonably
request a report of Borrower or, if requested by Lender, of an insurance broker
satisfactory to Lender of the insurance on the Inventory. All insurance with
respect to the Inventory shall satisfy the requirements for policies of
insurance set forth in Section 3.3(c) of the Mortgage.
Section IV.12. Limitations on Dispositions of Collateral. Borrower will not
directly or indirectly (through the sale of stock, merger or otherwise) without
the prior written consent of Lender sell, transfer, lease or otherwise dispose
of any of the Collateral, or attempt, offer or contract to do so except for
sales of Inventory in the ordinary course of its business for fair value in
arm's-length transactions. The inclusion of Proceeds of the Collateral under the
security interests granted hereby shall not be deemed a consent by Lender to any
sale or disposition of any Collateral other than as permitted by this Section
4.12.
Section IV.13. Further Identification of Collateral. Borrower will furnish
to Lender from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as Lender may reasonably request.
Section IV.14. Notices. Borrower will advise Lender promptly and in
reasonable detail, (i) of any Lien, security interest, encumbrance or claim made
or asserted against any of the Collateral, (ii) of any material change in the
composition of the Collateral, and (iii) of the occurrence of any other event
which would have a material effect on the aggregate value of the Collateral or
on the security interests granted to Lender in this Security Agreement.
Section IV.15. Right of Inspection. Lender shall at all times have full and
free access during normal business hours to all the books, correspondence and
records of Borrower related to the Mortgaged Property, and Lender or its
representatives may examine the same, take extracts therefrom, make photocopies
thereof and have such discussions with officers, employees and public
accountants of Borrower as Lender may deem necessary, and Borrower agrees to
render to Lender, at Borrower's cost and expense, such clerical and other
assistance as may be reasonably requested with regard thereto. Lender and its
representatives shall at all times also have the right to enter into and upon
any premises where any of the Inventory is located for the purpose of inspecting
the same, observing its use or protecting interests of Lender therein.
Section IV.16. Reimbursement Obligation. Should Borrower fail to comply
with the provisions of this Security Agreement, any other Collateral Document to
which it is a party or any other agreement relating to the Collateral such that
the value of any Collateral or the validity, perfection, rank or value of any
security interest granted to Lender hereunder or thereunder is thereby
diminished or potentially diminished or put at risk (as reasonably determined by
Lender), Lender on behalf of Borrower may, but shall not be required to, effect
such compliance on behalf of Borrower, and Borrower shall reimburse Lender for
the cost thereof on demand, and
8
interest shall accrue on such reimbursement obligation from the date the
relevant costs are incurred until reimbursement thereof in full at the Default
Rate set forth in the Note.
ARTICLE V
REMEDIES; RIGHTS UPON DEFAULT
Section V.1. UCC Rights. If any Event of Default shall have occurred,
Lender may in addition to all other rights and remedies granted to it in this
Security Agreement and in any other instrument or agreement securing, evidencing
or relating to the Obligations, exercise all rights and remedies of a secured
party under the UCC and all other rights available to Lender at law or in
equity.
Section V.2. Payments on Collateral. Without limiting the rights of Lender
under any other provision of the Security Agreement, if an Event of Default
shall occur and be continuing:
(a) all payments received by Borrower under or in connection with any of
the Collateral shall be held by Borrower in trust for Lender, shall be
segregated from other funds of Borrower and shall forthwith upon receipt by
Borrower be turned over to Lender, in the same form as received by Borrower
(duly indorsed by Borrower to Lender, if required to permit collection thereof
by Lender); and
(b) all such payments received by Lender (whether from Borrower or
otherwise) may, in the sole discretion of Lender, be held by Lender as
collateral security for, and/or then or at any time thereafter applied in whole
or in part by Lender to the payment of the expenses and Obligations as set forth
in Section 5.10.
Section V.3. Possession of Collateral. In furtherance of the foregoing,
Borrower expressly agrees that, if an Event of Default shall occur and be
continuing, Lender may (i) by judicial powers, or without judicial process if it
can be done without breach of the peace, enter any premises where any of such
Collateral is or may be located, and without charge or liability to Lender seize
and remove such Collateral from such premises and (ii) have access to and use of
Borrower's books and records relating to such Collateral.
Section V.4. Sale of Collateral.
(a) Borrower expressly agrees that if an Event of Default shall occur and
be continuing, Lender, without demand of performance or other demand or notice
of any kind (except the notice specified below of the time and place of any
public or private sale) to Borrower or any other Person (all of which demands
and/or notices are hereby waived by Borrower), may forthwith collect, receive,
appropriate and realize upon the Collateral and/or forthwith sell, lease,
assign, give an option or options to purchase or otherwise dispose of and
deliver the Collateral (or contract to do so) or any part thereof in one or more
parcels at public or private sale, at any exchange, broker's board or at any
office of Lender or elsewhere in such manner as is commercially reasonable and
as Lender may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. Lender shall have the right upon any such public
sale, and, to the extent permitted by law, upon any such private sale, to
purchase the whole or any part of the Collateral so sold. Borrower further
agrees, at Lender's request, to assemble the Collateral, and to make it
available to Lender at places which Lender may reasonably select. To the extent
permitted by applicable law, Borrower waives all claims, damages and demands
against Lender arising out of the foreclosure, repossession, retention or sale
of the Collateral.
(b) Unless the Collateral threatens to decline speedily in value or is of a
type customarily sold in a recognized market, Lender shall give Borrower ten
days written notice of its intention to make any such public or private sale or
sale at a broker's board or on a securities exchange. Such notice shall (i) in
the case of a public sale, state the time and place fixed for such sale, (ii) in
the case of a sale at a broker's board or on a securities exchange, state the
board or exchange at which such sale is to be made and the day on which the
Collateral, or any portion thereof being sold, will first be offered for sale,
and (iii) in the case of a private sale, state the day after which such sale may
be consummated. Lender shall not be required or obligated to make any such sale
pursuant to any such notice. Lender may adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the time and
place fixed for the sale, and such sale may be made at any time or place to
which the same may be so adjourned. In the case of any sale of all or any part
of the Collateral for credit or for future
9
delivery, the Collateral so sold may be retained by Lender until the selling
price is paid by the purchaser thereof, but Lender shall not incur any liability
in case of failure of such purchaser to pay for the Collateral so sold and, in
the case of such failure, such Collateral may again be sold upon like notice.
Section V.5. Rights of Purchasers. Upon any sale of the Collateral (whether
public or private), Lender shall have the right to deliver, assign and transfer
to the purchaser thereof the Collateral so sold. Each purchaser (including
Lender) at any such sale shall hold the Collateral so sold free from any claim
or right of whatever kind, including any equity or right of redemption of
Borrower, and Borrower, to the extent permitted by law, hereby specifically
waives all rights of redemption, including, without limitation, the right to
redeem the Collateral under Section 9-506 of the UCC, and any right to a
judicial or other stay or approval which it has or may have under any law now
existing or hereafter adopted.
Section V.6. Additional Rights of Lender.
(a) Lender shall have the right and power to institute and maintain such
suits and proceedings as it may deem appropriate to protect and enforce the
rights vested in it by this Security Agreement and may proceed by suit or suits
at law or in equity to enforce such rights and to foreclose upon and sell the
Collateral or any part thereof pursuant to the judgment or decree of a court of
competent jurisdiction.
(b) Lender shall, to the extent permitted by law and without regard to the
solvency or insolvency at the time of any Person then liable for the payment of
any of the Obligations or the then value of the Collateral, and without
requiring any bond from any party to such proceedings, be entitled to the
appointment of a special receiver or receivers (who may be Lender) for the
Collateral or any part thereof and for the rents, issues, tolls, profits,
royalties, revenues and other income therefrom, which receiver shall have such
powers as the court making such appointment shall confer, and to the entry of an
order directing that the rents, issues, tolls, profits, royalties, revenues and
other income of the property constituting the whole or any part of the
Collateral be segregated, sequestered and impounded for the benefit of Lender,
and Borrower irrevocably consents to the appointment of such receiver or
receivers and to the entry of such order.
Section V.7. Remedies Not Exclusive.
(a) No remedy conferred upon or reserved to Lender in this Security
Agreement is intended to be exclusive of any other remedy or remedies, but every
such remedy shall be cumulative and shall be in addition to every other remedy
conferred herein or now or hereafter existing at law, in equity or by statute.
(b) If Lender shall have proceeded to enforce any right, remedy or power
under this Security Agreement and the proceeding for the enforcement thereof
shall have been discontinued or abandoned for any reason or shall have been
determined adversely to Lender, Borrower and Lender shall, subject to any
determination in such proceeding, severally and respectively be restored to
their former positions and rights under this Security Agreement, and thereafter
all rights, remedies and powers of Lender shall continue as though no such
proceedings had been taken.
(c) All rights of action under this Security Agreement may be enforced by
Lender without the possession of any instrument evidencing any Obligation or the
production thereof at any trial or other proceeding relative thereto, and any
suit or proceeding instituted by Lender shall be brought in its name and any
judgment shall be held as part of the Collateral.
Section V.8. Waiver and Estoppel.
(a) Borrower, to the extent it may lawfully do so, agrees that it will not
at any time in any manner whatsoever claim or take the benefit or advantage of
any appraisement, valuation, stay, extension, moratorium, turnover or redemption
law, or any law now or hereafter in force permitting it to direct the order in
which the Collateral shall be sold which may delay, prevent or otherwise affect
the performance or enforcement of this Security Agreement and Borrower hereby
waives the benefits or advantage of all such laws, and covenants that it will
not hinder, delay or impede the execution of any power granted to Lender in this
Security Agreement but will permit the execution of every such power as though
no such law were in force; provided that nothing contained in
10
this Section 5.8 shall be construed as a waiver of any rights of Borrower under
any applicable federal bankruptcy law.
(b) Borrower, to the extent it may lawfully do so, on behalf of itself and
all who may claim through or under it, including without limitation any and all
subsequent creditors, vendees, assignees and lienors, waives and releases all
rights to demand or to have any marshalling of the Collateral upon any sale,
whether made under any power of sale granted herein or pursuant to judicial
proceedings or upon any foreclosure or any enforcement of this Security
Agreement and consents and agrees that all the Collateral may at any such sale
be offered and sold as an entirety.
(c) Borrower, to the extent it may lawfully do so, waives presentment,
demand, protest and any notice of any kind (except notices explicitly required
hereunder) in connection with this Security Agreement and any action taken by
Lender with respect to the Collateral.
Section V.9. Power of Attorney. Borrower hereby irrevocably constitutes and
appoints Lender, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of Borrower and in the name of Borrower or in its own name, from time to
time in Lender's reasonable discretion for the purpose of carrying out the terms
of this Security Agreement, to take any and all appropriate action and to
execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Security Agreement and, without
limiting the generality of the foregoing, hereby gives Lender the power and
right, on behalf of Borrower, without notice to or assent by Borrower to do the
following:
(a) to pay or discharge taxes, liens, security interests or other
encumbrances levied or placed on or threatened against the Collateral;
(b) to effect any insurance called for by the terms of this Security
Agreement and to pay all or any part of the premiums therefor and the costs
thereof; and
(c) upon the occurrence and continuance of any Event of Default and
otherwise to the extent provided in this Security Agreement, (i) to direct any
party liable for any payment under any of the Collateral to make payment of any
and all moneys due and to come due thereunder directly to Lender or as Lender
shall direct; (ii) to receive payment of and receipt for any and all moneys,
claims and other amounts due and to become due at any time in respect of or
arising out of any Collateral; (iii) to sign and indorse any invoices, freight
or express bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications and notices in connection with accounts and
other documents relating to the Collateral; (iv) to commence and prosecute any
suits, actions or proceedings at law or in equity in any court of competent
jurisdiction to collect the Collateral or any part thereof and to enforce any
other right in respect of any Collateral; (v) to defend any suit, action or
proceeding brought against Borrower with respect to any Collateral; (vi) to
settle, compromise and adjust any suit, action or proceeding described above
and, in connection therewith, to give such discharges or releases as Lender may
deem appropriate; and (vii) generally to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the Collateral as fully
and completely as though Lender were the absolute owner thereof for all
purposes, and to do, at Lender's option and Borrower's expense, at any time, or
from time to time, all acts and things which Lender deems necessary to protect,
preserve or realize upon the Collateral and Lender's security interest therein,
in order to effect the intent of this Security Agreement, all as fully and
effectively as Borrower might do.
Borrower hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable.
Section V.10. Application of Proceeds. Lender shall retain the net proceeds
of any collection, recovery, receipt, appropriation, realization or sale of the
Collateral and, after deducting all reasonable costs and expenses of every kind
incurred therein or incidental to the care and safekeeping of any or all of the
Collateral or in any way relating to the rights of Lender hereunder, including
reasonable attorneys' fees and legal expenses, apply such net proceeds to the
payment in whole or in part of the Obligations in such order as Lender may
elect. Only after applying such net proceeds and after the payment by Lender of
any other amount required by any provision of law, including Section 9-504(1)(c)
of the UCC, need Lender account for the surplus, if any, to Borrower or to
whomsoever may be lawfully entitled to the same.
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Section V.11. Subordinate Priority.
(a) Notwithstanding any provision of this Security Agreement to the
contrary, this Security Agreement is subject and subordinate to the First
Security Agreement.
(b) The Security Agreement and all other documents encumbering all or any
part of the Collateral as security for the First Note are sometimes referred to
herein as the "First Security Documents."
(c) For so long as the First Security Documents remain undischarged,
notwithstanding any term, provision, or condition of this Security Agreement:
i) The lien and security interest upon and in the Collateral created by
this Security Agreement are and shall be subordinate to the lien and security
interest upon and in the Collateral created by the First Security Documents; and
ii) To the extent that the provisions of the First Security Documents are
inconsistent with the provisions of this Security Agreement, the provisions of
the First Security Documents shall control and govern.
ARTICLE VI
MISCELLANEOUS
Section VI.1. Notices. Any notice, demand, statement, request or consent
made hereunder shall be in writing and shall be deemed to be received by the
addressee on the first (1st) business day after such notice is tendered to a
nationally-recognized overnight delivery service or on the third (3rd) day
following the day such notice is deposited with the United States postal service
first class certified mail, return receipt requested, addressed to the address,
as set forth above, of the party to whom such notice is to be given, or to such
other address as Borrower or Lender, as the case may be, shall in like manner
designate in writing.
Section VI.2. No Waivers. No failure on the part of Lender to exercise, no
course of dealing with respect to, and no delay in exercising any right, power
or privilege under this Security Agreement or any document or agreement
contemplated hereby shall operate as a waiver thereof or shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
Section VI.3. Compensation and Expenses of Lender. Borrower shall pay to
Lender from time to time upon demand, all of the fees, costs and expenses
incurred by Lender (including, without limitation, the reasonable fees and
disbursements of counsel and any amounts payable by Lender to any of its agents,
whether on account of fees, indemnities or otherwise) (i) arising in connection
with the administration, modification, amendment, waiver or termination of this
Security Agreement or any document or agreement contemplated hereby or any
consent or waiver hereunder or thereunder or (ii) incurred in connection with
the administration of this Security Agreement, or any document or agreement
contemplated hereby, or in connection with the administration, sale or other
disposition of Collateral hereunder or under any document or agreement
contemplated hereby or the preservation, protection or defense of the rights of
Lender in and to the Collateral.
Section VI.4. Amendments, Supplements and Waivers. The parties hereto may,
from time to time, enter into written agreements supplemental hereto for the
purpose of adding any provisions to this Security Agreement, waiving any
provisions hereof or changing in any manner the rights of the parties.
Section VI.5. Successors and Assigns. This Security Agreement shall be
binding upon and inure to the benefit of each of the parties hereto and shall
inure to the benefit of Lender's successors and assigns. Nothing herein is
intended or shall be construed to give any other Person any right, remedy or
claim under, to or in respect of this Security Agreement or any Collateral.
Section VI.6. Limitation of Law; Severability.
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(a) All rights, remedies and powers provided in this Security Agreement may
be exercised only to the extent that the exercise thereof does not violate any
applicable provision of law, and all the provisions of this Security Agreement
are intended to be subject to all applicable mandatory provisions of law which
may be controlling and to be limited to the extent necessary so that they will
not render this Security Agreement invalid, unenforceable in whole or in part,
or not entitled to be recorded, registered or filed under the provisions of any
applicable law.
(b) If any provision hereof is invalid and unenforceable in any
jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in order to carry out the intentions of the parties
hereto as nearly as may be possible; and (ii) the invalidity or unenforceability
of any provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provisions in any other jurisdiction.
Section VI.7. Governing Law. This Security Agreement shall be governed by
and construed in accordance with the laws of the state of the location of the
Mortgaged Property.
Section VI.8. Counterparts; Effectiveness. This Security Agreement may be
signed in any number of counterparts with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Security Agreement shall
become effective when Lender shall receive counterparts executed by itself and
Borrower.
Section VI.9. Termination; Survival. This Security Agreement shall
terminate when the security interests granted hereunder have terminated and the
Collateral has been released as provided in Section 2.5, provided that the
obligations of Borrower under any of Sections 4.16 and 6.3 shall survive any
such termination.
[The balance of this page is intentionally left blank.]
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
BORROWER:
JAGI ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇, LLC, a Delaware
limited liability company
By: Janus American Group, Inc., a Delaware
corporation
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
LENDER:
AMRESCO CAPITAL, L.P.,
a Delaware limited partnership
By: AMRESCO Mortgage Capital, Inc.,
a Delaware corporation,
Its sole General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Investment Officer
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇#▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
14
SCHEDULE 1
Borrower's Chief Executive Office
and Principal Place of Business:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Location(s) of Records of
Accounts and Other Intangibles:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
15
SCHEDULE 2
Location(s) of Inventory
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇
SCHEDULE 3
Real Estate
EXHIBIT "A"
Situated in the Township of Copley, County of Summit, State of Ohio and known as
being part of original Copley Township Lot Number 2, also known as being the
south 122 feet of Lot Number 14, all of Lot Number 15 and the north 75 feet of
Lot Number 16 of the Montrose West Allotment Phase I-Part 2 and Rerecord of
Phase I as recorded in Plat Cabinet "B" Slides 747 to 753 of said County Records
and being further described as follows:
Parcel Number 1-South 122 feet of Lot Number 14.
-----------------------------------------------
Beginning at the northwest corner of said Montrose West Allotment, said
northwest corner also being the northwest corner of Lot Number 1 of said
Montrose West Allotment, thence S 00 deg. 13' 30" W for a distance of 1298.76
feet to a point, said point being the northwest corner of said Lot Number 14,
thence continuing S 00 deg. 13' 30" W for a distance of 96.00 feet to the true
place of beginning of the parcel of land hereinafter described;
Thence clockwise along the following five (5) courses and distances;
1) Thence S 89 deg. 46' 30" E for a distance of 400.60 feet to a point, said
point being on the western right of way line of Montrose West Avenue (70
feet);
2) Thence S 02 deg. 47' 57" W along said western right of way line for a
distance of 19.29 feet to a point, said point being a point of curvature;
3) Thence continuing along said western right of way line along the arc of a
curve to the right having the following properties;
Delta = 01 deg. 33' 28"
Radius = 3784.72 feet
Tangent = 51.45 feet
Chord = 102.90 feet
Chord Bearing = S 03 deg. 34' 41" deg. W for a distance of 102.90
feet to a point, said point being the
southeast corner of said Lot Number 14;
4) Thence N 89 deg. 46' 30" W along the southern line of said Lot Number 14
for a distance of 393.72 feet to a point, said point being the southwest
corner of said Lot Number 14;
5) Thence N 00 deg. 13' 30" E along the western line of said Lot Number 14 and
western line of said Montrose West Allotment for a distance of 122.00 feet
to a point; said point being the true place of beginning, and containing
1.1132 acres of land, more or less, and subject to all easements,
restrictions, and convenants of record.
Parcel Number 2--All of Lot Number 15
-------------------------------------
Situated in the Township of Copley, County of Summit, State of Ohio and known as
being part of original Copley Township Lot Number 2, also known as being all of
Lot Number 15 of the Montrose West Allotment Phase I-Part 2 and Rerecord of
Phase I as recorded in Plat Cabinet "B" Slides 747 to 753 of said County Records
and being further described as follows:
Beginning at the northwest corner of said Montrose West Allotment, said
northwest corner also being the northwest corner of Lot Number 1 of said
Montrose West Allotment, thence S 00 deg. 13' 30" W along the western line of
said Montrose West Allotment for a distance of 1516.76 feet to a point, said
point being the northwest corner and true place of beginning of the parcel of
land hereinafter described;
Thence clockwise along the following four (4) courses and distances;
1) Thence S 89 deg. 46' 30" E along the north line of said Lot Number 15, said
north line also being the south line of Parcel Number 1 as above described,
for a distance of 393.72 feet to a point, said point being on the western
right of way line of Montrose West Avenue (70 feet);
2) Thence along the said western right of way line, along the arc of a curve
to the right having the following properties;
Delta = 04 deg. 52' 40"
Radius = 3784.72 feet
Tangent = 161.20 feet
Chord = 322.12 feet
Chord Bearing = S 06 deg. 47' 45" W for a distance of 322.21
feet to a point, said point being the
southeast corner of said Lot Number 15;
3) Thence N 89 deg. 46' 30" W along the south line of said Lot Number 15 for a
distance of 356.86 feet to a point; said point being the southwest corner
of said Lot Number 15;
4) Thence N 00 deg. 13' 30" E along the western line of said Lot Number 15 for
a distance of 320.00 feet to a point, said point being the true place of
beginning, and containing 2.7738 acres of land, more or less, and subject
to all easements, restrictions, and covenants of record.
Parcel Number 3--North 75 feet of Lot Number 16
----------------------------------------------
Situated in the Township of Copley, County of Summit, State of Ohio and known as
being part of original Copley Township Lot Number 2, also known as being the
north 75 feet of Lot Number 16 of the Montrose West Allotment Phase I-Part 2 and
Rerecord of Phase I as recorded in Plat Cabinet "B" Slides 747 to 753 of said
County Records and being further described as follows:
Beginning at the northwest corner of said Montrose West Allotment, said
northwest corner also being the northwest corner of Lot Number 1 of said
Montrose West Allotment, thence S 00 deg. 13' 30" W along the western line of
said Montrose West Allotment for a distance of 1836.76 feet to a point, said
point being the northwest corner of said Lot Number 16 and true place of
beginning of the parcel of land hereinafter described;
Thence clockwise along the following four (4) courses and distances;
1) Thence S 89 deg. 46' 30" E along the north line of said Lot Number 16, said
north line also being the south line of Parcel Number 2 as above described,
for a distance of 356.86 feet to a point, said point being on the western
right of way line of Montrose West Avenue (70 feet);
2) Thence along the said western right of way line, long the arc of a curve to
the right having the following properties;
Delta = 01 deg. 09' 05"
Radius = 3784.72'
Tangent = 38.03'
Chord = 76.06'
Chord Bearing = S 09 deg. 48' 37.5" W for a distance of 76.06
feet to a point;
3) Thence N 89 deg. 46' 30" W for a distance of 344.19 feet to a point, said
point being on the western line of said Lot Number 16;
4) Thence W 00 deg. 13' 30" E along said western line for a distance of 75.00
feet to a point, said point being the true place of beginning, and
containing 0.6037 acres of land, more or less, and subject to all
easements, restrictions, and covenants of record.
The total acreage of all three parcels in 4.4907 acres.
Excepting therefrom the following described premises:
Situated in the Township of Copley, County of Summit, State of Ohio, and known
as being part of original Copley Township Lot Number 2, also known as being the
south 42.42 feet of Original Lot Number 15 and north 75.00 feet of Original Lot
Number 16 of the Montrose West Allotment Phase I-Part 2 and Re-record of Phase I
as recorded in Plat Cabinet "B" Slides 747 to 753 of said County Records and
being further described as follows:
Beginning at the northwest corner of said Montrose West Allotment, said
northwest corner also being the northwest corner of Lot Number 1 of said
Montrose West Allotment, thence S 00 deg. 13' 30" W. along the western line of
said Montrose West Allotment for a distance of 1836.76 feet to a point, said
point being the northwest corner of Lot Number 16 of said Montrose West
Allotment, said point also being the True Place of Beginning of the parcel of
land hereinafter described, thence clockwise along the following five (5)
courses and distances:
1. Thence N 00 deg. 13' 30" E. along the westerly line of said Lot Number 15
for a distance of 42.42 feet to a point;
2. Thence S 89 deg. 46' 30" E. for a distance of 363.33 feet to a point, said
point being on the westerly right of way line of ▇▇▇▇▇▇▇▇ West Avenue (75
feet wide);
3. Thence along said westerly right of way line along the arc of a curve to
the right having the following properties:
Delta = 01 deg. 48' 04"
Radius = 3784.72
Tangent = 59.49
Chord = 118.97
Chord Bearing = S 09 deg. 29' 10" W. for a distance of 118.98
feet to a point;
4. Thence N 89 deg. 46' 30" W. for a distance of 344.18 feet to a point,
said point being on the westerly line of said Lot Number 16;
5. Thence N 00 deg. 13' 30" E. along the westerly line of said Lot Number 16
for a distance of 75.00 feet to the True Place of Beginning and containing
0.9544 of an acre of land of which 0.6037 of an acre is in Lot Number 16
and 0.3507 of an acre is in Lot Number 15, more or less, and subject to all
easements, restrictions and covenants of record as surveyed under the
supervision of L. ▇▇▇▇▇ ▇▇▇▇▇▇, P.S., Number 5917, for GPD Associates, in
September of 1992.
EXHIBIT A
PARCEL 1
Situated in the Township of ▇▇▇▇▇▇▇, County of ▇▇▇▇▇ and State of Ohio: and
known as being part of the Northwest Quarter of Section ▇▇. ▇▇, ▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and being further described as follows:
Beginning at an iron pin at the Southeasterly corner of said Northwest Quarter
of Section No. 24; thence from said place of beginning North 2 deg. 14' 12"
East, measured along the Easterly line of said Northwest Quarter of Section No.
24 and along the center line of ▇▇▇▇▇▇▇▇ Road, Proposed, 80 feet wide, 1065.06
feet to a point therein; Thence North 87 deg. 45' 48" West, 40.00 feet to a
point in the Westerly line of said ▇▇▇▇▇▇▇▇ Road, proposed, which is the
principal place of beginning for premises herein described; Thence from said
principal place of beginning North 56 deg. 05' 21" West, 83.99 feet to a point
in the Southeasterly curved line of Everhard Road, 80 feet wide; Thence
Northeasterly, along said Southeasterly curved line of Everhard Road, 25.00 feet
along the arc of a circle, deflecting to the right, said arc having a radius of
1870.73 feet and a chord which bears North 65 deg. 19' 32" East, 25.00 feet to a
point of compound curvature at the Southwesterly end of a curved turnout,
between said Southeasterly curved line of Everhard Road and said Westerly line
of ▇▇▇▇▇▇▇▇ Road, Proposed; Thence Northeasterly and Southeasterly along said
curved turnout, 69.16 feet along the arc of a circle, deflecting to the right,
said arc having a radius of 34.00 feet and a chord which bears South 56 deg. 01'
39" East, 57.83 feet to a point of tangency in said Westerly line of ▇▇▇▇▇▇▇▇
Road Proposed; Thence South 2 deg. 14' 12" West, measured along said Westerly
line of ▇▇▇▇▇▇▇▇ Road, Proposed, 25.00 feet to the principal place of beginning.
PARCEL 2
Situated in the Township of ▇▇▇▇▇▇▇, County of ▇▇▇▇▇ and State of Ohio: and
known as being part of the Northwest Quarter of Section ▇▇. ▇▇, ▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and being further described as follows:
Beginning at an iron pin at the Southeasterly corner of said Northwest Quarter
of Section No. 24; Thence from said place of beginning North 2 deg. 14' 12"
East, measured along the Easterly line of said Northwest Quarter of Section No.
24 and along the center line of ▇▇▇▇▇▇▇▇ Road, Proposed, 80 feet wide, 588.34
feet to a point therein; Thence North 87 deg. 53' 14" West, 40.00 feet to a
point in the Westerly line of said ▇▇▇▇▇▇▇▇ Road, Proposed, which is the
principal place of beginning for premises
herein described; Thence from said principal place of beginning, continuing
North 87 deg. 53' 14" West, 696.8 feet to a point in the Southeasterly curved
line of Everhard Road, 80 feet wide; Thence Northeasterly along said
Southeasterly curved line of Everhard Road, 696.47 along the arc of a circle,
deflecting to the right, said arc having a radius of 1870.73 feet and a chord
which bears North 50 deg. 26' 55" East, 692.45 feet to a point therein; Thence
South 56 deg. 51' 03" East, 210.46 feet to a point in said Westerly line of
▇▇▇▇▇▇▇▇ Road, Proposed. Thence South 2 deg. 14' 12" West, measured along said
Westerly line of ▇▇▇▇▇▇▇▇ Road Proposed, 351.81 feet to the principal place of
beginning.
EXHIBIT A
PARCEL NO. 1:
Situated in the City of Independence, County of Cuyahoga and State of Ohio and
known as being part of Original Independence Township ▇▇▇ ▇▇. ▇▇, ▇▇▇▇▇ ▇▇. ▇,
▇▇▇▇ ▇▇ ▇▇▇▇▇ and is bounded and described as follows:
Beginning at a 1" iron pin monument found in the centerline of Rockside Road, 80
feet in width, at its intersection with the Westerly line of said Lot No. 21;
Thence South 73 deg. 38' 43" East, 1074.21 feet along the centerline of Rockside
Road, passing through a 1" iron pin monument at 928.43 feet;
Thence North 06 deg. 00' 22" East 190.66 feet along the Easterly line of land
conveyed to ▇▇▇▇▇▇▇ ▇. Bay by the deed recorded in Volume 9487, Page 564 of
Cuyahoga County Deed Records and the most Easterly line of land conveyed to
▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ by the deed recorded in Volume 4871, Page 402 of
Cuyahoga County Deed Records, to the principal place of beginning, of the
premises herein to be described;
Thence North 83 deg. 59' 38" West, 143.30 feet to a point;
Thence South 06 deg. 00' 22" West, 14.00 feet to a point of compound curvature
in the Northeasterly line of Frontage Road, 60 feet in width, also being on the
Northeasterly line of Parcel No. 410AWD as shown by the deed to the State of
Ohio recorded in Volume 12396, Page 621 of Cuyahoga County Deed Records;
Thence Northwesterly along the arc of a circle deflecting to the left 45.24
feet, said arc having a radius of 142.47 feet and a chord which bears North 64
deg. 33' 46" West, 45.05 feet along the Northeasterly line of Frontage Road to a
point of tangency therein,
Thence North 73 deg. 39' 37" West, 275.63 feet along said Northeasterly line to
a point of curvature in the Northeasterly line of Parcel No. 410WD as shown by
the deed to the State of Ohio recorded in Volume 12389, Page 491 of Cuyahoga
County Deed Records.
Thence Northwesterly along the arc of a curve deflecting to the right, 45.85
feet, said arc having a radius of 32.00 feet and a chord which bears North 32
deg. 36' 32" West 42.03 feet to a point of tangency in the Easterly line of
Frontage Road;
Thence North 08 deg. 26' 33" East 548.15 feet along said Easterly line to the
Southerly line of land conveyed to ▇▇▇▇▇ Trem and ▇▇▇▇ Trem by the deed recorded
in Volume 12379, Page 357 of Cuyahoga County Deed Records;
Thence South 81 deg. 34' 00" East 146.47 feet along said Southerly line to an
angle point therein;
Thence North 87 deg. 54' 35" East, 316.70 feet along said Southerly line and the
Northerly line of land so conveyed to ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ as
aforementioned;
Thence South 06 degrees 00' 22" West, 669.32 feet along the Easterly line of
land so conveyed to ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ to the principal place of
beginning, according to a survey by ▇▇▇▇▇▇▇ & ▇▇▇▇ Inc., dated October 18, 1994.
PARCEL NO. 2
Situated in the City of Independence, County of Cuyahoga and State of Ohio and
known as being part of original Independence Township ▇▇▇ ▇▇. ▇▇, ▇▇▇▇▇ ▇▇. ▇,
▇▇▇▇ ▇▇ ▇▇▇▇▇ and bounded and described as follows:
Beginning at a 1" iron pin monument found in the centerline of Rockside Road, 80
feet in width, at its intersection with the Westerly line of said Original Lot
No. 21;
Thence South 73 deg. 38' 43" East, 551.77 feet along the centerline of Rockside
Road to its intersection with the Easterly line of land conveyed to S-I-D
Management Co., by deed dated August 4, 1967 and is recorded in Volume 12149,
Page 333 of Cuyahoga County Deed Records;
Thence North 08 deg. 23' 17" East, 96.00 feet along the Easterly line of land so
conveyed to the most Southerly corner of Parcel No. 409WD conveyed to the State
of Ohio by the deed recorded in Volume 12357, Page 639 of Cuyahoga County Deed
Records;
Thence North 23 deg. 36' 20" West, 69.41 feet along the Southwesterly line of
said Parcel No. 409WD and a Southwesterly line of Frontage Road, 60 feet in
width, to an angle point therein,
Thence North 08 deg. 26' 33" East, 413.00 feet along the Westerly line of said
Parcel No. 409WD and Frontage Road to its intersection with the Northerly line
of land conveyed to C-C Restaurant LTD-9 dated December 12, 1985 and recorded in
Volume 85-6917, Page 63 of Cuyahoga County Deed Records and the principal place
of beginning of the premises herein to be described;
Thence North 81 deg. 33' 27" West, 166.00 feet along the Northerly line of land
so conveyed to an angle point therein;
Thence South 77 deg. 59' 26" West, 162.50 feet along said Northerly line,
parallel to a line drawn between the center of the existing transmission towers,
to the Easterly line of Parcel No. 409WL as conveyed to the State of Ohio by the
deed recorded in Volume 12357, Page 639, said Easterly line also being the
Easterly line of Interstate Route 77,
Thence North 16 deg. 49' 33" East, 415.27 feet along said Easterly line to an
angle point therein;
Thence North 54 deg. 52' 41" East, 75.61 feet along said Easterly line to an
angle point therein;
Thence North 21 deg. 37' 43" East, 209.82 feet along said Easterly line to the
Northeasterly corner of Parcel No. 409WL as aforementioned and the Northerly
line of Original Lot No. 21;
Thence North 88 deg. 11' 40" East, 193.93 feet along said Northerly line of
Original ▇▇▇ ▇▇. ▇▇ to the Northeasterly corner of land so conveyed to S-I-D
Management Co., as aforesaid;
Thence South 08 deg. 23' 17" West, 217.39 feet along the Easterly line of land
so conveyed to the most Northerly corner of Parcel No. 409WD as aforementioned
and the Westerly line of Frontage Road;
Thence Southwesterly along the arc of a curve deflecting to the left, 233.15
feet, said arc having a radius of 749.38 feet and a chord which bears South 17
deg. 21' 20" West, 232.21 feet along said Westerly line to a point of tangency
therein;
Thence continuing South 08 deg. 26' 33" West, 198.16 feet along said Westerly
line to the principal place of beginning, according to a survey by ▇▇▇▇▇▇▇ &
▇▇▇▇, Inc., dated October, 18, 1994.
SCHEDULE 4
Trade Names, Division Names, etc.
Holiday Inn ▇▇▇▇▇▇
SCHEDULE 5
Required Filings and Recordings
SCHEDULE TO EXHIBIT 10.30
OTHER SECOND SECURITY AGREEMENTS
I.
------------------------------------------------------------ ---------------------------------------------------------
Name of Borrower JAGI Cleveland - Independence, LLC, a Delaware limited
liability company
------------------------------------------------------------ ---------------------------------------------------------
Definition of Franchise Agreement All rights of Borrower pursuant to that certain Holiday
Inn Hotel Change of Ownership Agreement between Borrower
and Holiday Hospitality Franchising, Inc.
------------------------------------------------------------ ---------------------------------------------------------
Schedule 2--Location of Inventory ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
------------------------------------------------------------ ---------------------------------------------------------
Schedule 3 Legal Description of Real Estate
------------------------------------------------------------ ---------------------------------------------------------
II.
------------------------------------------------------------ ---------------------------------------------------------
Name of Borrower JAGI Montrose West, LLC, a Delaware limited liability
company
------------------------------------------------------------ ---------------------------------------------------------
Definition of Franchise Agreement All rights of Borrower pursuant to that certain Comfort
Inn Hotel Change of Ownership Agreement between Borrower
and Choice Hotels International, Inc.
------------------------------------------------------------ ---------------------------------------------------------
Schedule 2--Location of Inventory ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇
------------------------------------------------------------ ---------------------------------------------------------
Schedule 3 Legal Description of Real Estate
------------------------------------------------------------ ---------------------------------------------------------
III.
------------------------------------------------------------ ---------------------------------------------------------
Name of Borrower JAGI North Canton, LLC, a Delaware limited liability
company
------------------------------------------------------------ ---------------------------------------------------------
Definition of Franchise Agreement All rights of Borrower pursuant to that certain Holiday
Inn Hotel Change of Ownership Agreement between
Borrower and Holiday Hospitality Franchising, Inc.
------------------------------------------------------------ ---------------------------------------------------------
Schedule 2--Location of Inventory ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
------------------------------------------------------------ ---------------------------------------------------------
Schedule 3 Legal Description of Real Estate
------------------------------------------------------------ ---------------------------------------------------------
