1
Exhibit 10.33
BANK ONE
OHIO OPEN END MORTGAGE
AMOUNT $540,000.00
----------
The undersigned, North Coast Energy, Inc. ("Mortgagor"), for the following
purposes and in consideration of FIVE HUNDRED FORTY THOUSAND AND
NO/100------------------DOLLARS ($ 540,000.00 ) paid by BANK ONE, AKRON, NA
having an office at 00 X. XXXX XX., XXXXX, XXXX 00000 ("Mortgagee") does grant
and convey unto Mortgagee, its successors and assigns, all right, title and
interest Mortgagor now has or hereafter may have in and to all the premises
located in City of Twinsburg, Summit County, Ohio more specifically described in
Exhibit A attached hereto and made a part hereof, including such real property,
all buildings now or hereafter attached to or used in connection therewith, all
hereditaments, privileges and appurtenances thereunto belonging, all fixtures
and articles annexed thereto as permanent accessions now or hereafter used in
connection therewith, and all leases, rents, issues and profits which may arise
therefrom, be the same more or less, but subject to all legal highways
("Mortgaged Property").
1. USE AND PURPOSE. To have and to hold the Mortgaged Property to Mortgagee,
its successors and assigns, for the use and purpose of securing the
following (collectively "Indebtedness" or "Obligations"):
(a) DEBT SECURED. Payment of the Indebtedness evidenced by the following
instruments, including any amendments, extensions or renewals thereof
in the aggregate sum of the consideration expressed above with
interest, and the performance and observance of each term thereof by
the parties obligated thereon and any guarantor thereof (singularly
and collectively "Obligor"):
Promissory Note $540,000 April 30, 1996 North Coast Energy, Inc.
(i)
------------------- ------------------- --------------------- --------------------------------------
Instrument Amount Date Obligor
------------------------------- -------------------------------- --------------------------------------
Obligor Obligor Oblgor
(ii) $
------------------- ------------------- --------------------- --------------------------------------
Instrument Amount Date Obligor
------------------------------- -------------------------------- --------------------------------------
Obligor Obligor Oblgor
(iii) $
------------------- ------------------- --------------------- --------------------------------------
Instrument Amount Date Obligor
------------------------------- -------------------------------- --------------------------------------
Obligor Obligor Oblgor
(b) ADVANCES FOR TAXES, INSURANCE, ETC. Upon request of Mortgagee,
Xxxxxxxxx also hereby agrees to pay to Mortgagee monthly a sum equal
to 1/l2 of the annual taxes, assessments and reassessments levied
against the Mortgaged Property and 1/12 of the annual premium of
insurance insuring the Mortgaged Property as estimated or computed in
each instance by Mortgagee, which payments Mortgagee is hereby
authorized to accumulate and commingle with other funds of Mortgagee
without any obligation to pay interest thereon and use for the payment
of taxes, assessments, reassessments and insurance premiums as they
become due and payable, provided the amount deposited with Mortgagee
for such purposes including any amount of additional deposit requested
by Mortgagee is sufficient with which to pay the same. In addition to
the right herein granted and in addition to the Indebtedness and
Obligations secured hereby, This Mortgage will also secure unpaid
balances of advances made by Mortgagee with respect to the Mortgaged
Property for the payment of taxes, assessments, insurance premiums or
costs incurred for the protection of the Mortgaged Property;
(c) OTHER ADVANCES. Payment by Mortgagor to Mortgagee of all sums expended
or advanced by Mortgagee pursuant to any term or provision of this
Mortgage;
(d) PERFORMANCE. Performance and observance of each covenant and agreement
herein, in the Indebtedness and Obligations secured and in any other
agreement relating to such, as construction loan agreements and
contracts;
(e) FUTURE ADVANCES. Unpaid balances of loan advances made after this
Mortgage will be delivered to the recorder for recording to the extent
that the total unpaid Indebtedness, exclusive of interest thereon,
does not exceed the consideration set forth above which will be the
maximum amount of Indebtedness that may be outstanding at any time;
and
(f) OTHER DEBTS. Payment by Mortgagor to Mortgagee of all other
liabilities and Indebtedness, direct or contingent, now or hereafter
owing by Mortgagor to Mortgagee.
2) COVENANTS OF MORTGAGOR. Mortgagor covenants and agrees with Mortgagee as
follows:
(a) TITLE AND USE. At the time hereof Mortgagor is well seized of the
Mortgaged Property, has title with a good and indefeasible estate in
fee simple and has good right to bargain, sell, convey, and encumber
as set forth herein; that Mortgagor will warrant and defend title to
the Mortgaged Property forever against the claims and demands of all
persons whomsoever; that the Mortgaged Property is free and clear of
all easements, reservations, conditions, restrictions and encumbrances
whatsoever, except liens for taxes and assessments not yet due and
payable, building and use restrictions of record, zoning ordinances,
if any, and the exceptions which may be set forth on Exhibit B
attached hereto and made a part hereof; that to the best of
Mortgagor's knowledge the Mortgaged Property while held by Mortgagor
or any previous owner has not been used contrary to law to use,
generate, store or dispose of materials such as toxic waste or
hazardous substances commonly identified by governmental regulations
as hazardous including but not limited to flammable, explosive,
corrosive, reactive, radioactive or otherwise hazardous to human use
of the Mortgaged Property ("Hazardous Materials") and there has been
no seepage, spills, release or discharge of Hazardous Materials on the
Mortgaged Property at any time.
(b) INSURANCE. Mortgagor will keep all buildings and other insurable
property now or hereafter erected or placed in or on the Mortgaged
Properly insured against loss or damage by fire, flood, builder's
risk, the several hazards comprehended from time to time within all
risk, extended coverage terms, including boiler and pressure vessel
hazards, if applicable, war damage, when available, and such other
hazards, casualties and contingencies, in such amounts at replacement
costs, and for such periods as may be required by Mortgagee and at no
time will the amount of fire and extended coverage be less than the
full insurable value of the Mortgaged Property. Further Mortgagor will
maintain comprehensive public liability insurance for injuries to
persons, including death, and property damage or loss of use in
amounts acceptable to Mortgagee. All such insurance will be carried in
companies approved by Mortgagee and will include a provision
satisfactory to it making loss payable to Mortgagee or naming
Mortgagee as an insured as its interest may appear. Mortgagor will
promptly pay when due all insurance premiums and upon request of
Mortgagee will promptly deliver the policies, certificates of
insurance or any renewal thereof to Mortgagee. Should any loss occur
to the Mortgaged Property Mortgagor will promptly give written notice
to Mortgagee of such loss or damage and will not adjust or settle such
loss without the written consent of Mortgagee, and Mortgagee is hereby
appointed attorney-in-fact for Mortgagor to make proof of loss or
damage if Xxxxxxxxx fails to do so promptly, to receive any sums
collected under said policies, which sums or any part thereof at the
option of Mortgagee may be applied as payment for the Indebtedness or
to the restoration or repair of the Mortgaged Property so destroyed or
damaged, and, in the event any insurance losses are paid by check,
draft or other instrument payable to Mortgagor, Mortgagee may endorse
Xxxxxxxxx's name thereon and take such further steps in behalf of
Mortgagor as are necessary to realize on such instrument. Application
of insurance proceeds to payment of Indebtedness will not extend,
postpone, or waive installments otherwise due, or change the amount of
payments to be made, and proceeds may be applied in such order and in
such amounts as Mortgagee may elect. In the event of foreclosure of
this Mortgage, all right, title and interest of Xxxxxxxxx in and to
any insurance policies then in force will pass to Mortgagee who is
hereby appointed attorney-in-fact for Mortgagor to assign and transfer
such policies.
(c) MAINTENANCE. Mortgagor will at all times maintain the
Mortgaged Property in good and substantial repair, free from waste or
nuisance of any kind; will make all repairs, replacements,
improvements and additions which may be necessary to preserve and
maintain the Mortgaged Properly; will permit the Mortgagee, its agents
or representatives, to inspect the same at any reasonable time; will
comply with any reasonable requirements made by Mortgagee with respect
to maintaining and preserving the Mortgaged Property; has and will
comply with all laws, ordinances and regulations affecting the
Mortgaged Property or its use and will not use, generate, store or
dispose of Hazardous Materials in, on, under or around the Mortgaged
Property or permit anyone to use the Mortgaged Property for such
purposes and will not permit to occur any seepage, spill, release or
discharge of Hazardous Materials on or onto the Mortgaged Property at
any time, and will indemnify Mortgagee for any loss arising out of the
presence of Hazardous Materials in any way on the Mortgaged Property
and any violation of federal, state or local environmental laws or
regulations, such as clean up costs, personal injury or death,
restoration, and remedial actions; will not alter, destroy or remove
any of the Mortgaged Property or permit the Mortgaged Property to be
altered, destroyed or removed or used for any purpose other than
2
Exhibit 10.33
that for which it is now used or permit any easement thereon without
first obtaining Mortgagee's written permission; will complete in good
workmanlike manner any building or improvement which is being or may
be constructed; repaired thereon; will pay when due all claims for
work performed and material furnished and will not permit any lien of
mechanics or materialmen nor any judgment lien to attach to the
Mortgaged Property. Xxxxxxxxx hereby authorizes and empowers Mortgagee
at its option to do all things authorized or required to be done by
Mortgagee under any present or future law of the State of Ohio
relating to improvement of or payment of encumbrances on the Mortgaged
Property or to the granting of liens for work, labor, material or
machinery in connection with the construction of any building or other
improvement on the Mortgaged Property in protection of Mortgagee's
interest therein and Mortgagee will be subrogated to the claims of any
party paid with the proceeds.
(d) CONSTRUCTION. If any building or other Improvements of the Mortgaged
Property are to be constructed or are under construction and are not
completed, Mortgagee will have the right, upon the happening of any
event of default, to enter into possession of the Mortgaged Property
and perform any and all work and labor necessary to complete
improvements substantially in accordance with the plans and
specifications therefor and employ watchmen to protect the Mortgaged
Property; all sums expended by Mortgagee for such purposes will be
deemed to have been paid to Mortgagor and secured by this Mortgage.
For this purpose, Mortgagor hereby constitutes and appoints Mortgagee
its true and lawful attorney-in-fact with full power of substitution
to complete the construction in the name of Xxxxxxxxx, and hereby
empowers said attorney or attorneys to use any funds of Mortgagor
including any balance which may be held in escrow and any funds which
may remain unadvanced hereunder for the purpose of completing
construction in the manner called for by the plans and specifications;
to make such additions and changes and corrections in the plans and
specifications which will be necessary or desirable to complete
construction as Mortgagee deems necessary in its sole judgment and in
substantially the manner contemplated by the plans and specifications;
to employ such contractors, subcontractors, agents, architects and
inspectors as will be required for said purposes; to enforce or
otherwise without limitation deal with any bonding or insurance
company under any policy required hereunder as Mortgagor might do in
its own behalf; to pay, settle or compromise all existing bills and
claims which are or may be liens against the Mortgaged Property, or
which may be necessary or desirable for the timely completion of
construction or the removal of liens and encumbrances; to execute all
applications and certificates in the name of Mortgagor which may be
required by any construction contract; to do any and every act with
respect to construction which Mortgagor may do in its own behalf; and
to prosecute and defend all actions or proceedings in connection with
improvements on the Mortgaged Property and to take such action and
require such performance as Mortgagee deems necessary. This power of
attorney will be deemed to be a power coupled with an interest which
cannot be revoked. Said attorney-in-fact will also have power to
prosecute and defend all actions or proceedings in connection with the
construction of improvements on the Properly and to take such action
and require such performance as is deemed necessary.
Mortgagee will not be liable for any loss sustained by Mortgagor
resulting from Xxxxxxxxx's failure to enforce the power of attorney
granted herein or from any other act or omission of Mortgagee in
managing the Mortgaged Property. Nor will Mortgagee be obligated to
perform or discharge nor does Mortgagee hereby undertake to perform or
discharge any obligation, duty or liability with respect to
improvements and Mortgagor will indemnify Mortgagee for, and hold
Mortgagee harmless from, any and all liability, loss or damage which
may or might be incurred in the exercise or failure to exercise any of
the rights granted to Mortgagee under this section or by reason of any
assignment to Mortgagee of the construction contract, architectural
agreements, plans and specifications and other contract rights with
respect to the Mortgaged Property. Should Mortgagee incur any such
liability or in defense of any claims or demands relating thereto, the
amount thereof, including costs, expenses and reasonable attorney's
fees, will be secured hereby and Xxxxxxxxx will reimburse Mortgagee
therefore immediately upon demand. It is further understood that this
section will not operate to place responsibility upon Mortgagee for
the control, care, management or repair of the Mortgaged Property or
for the carrying out construction, nor will it operate to make
Mortgagee responsible or liable for any waste committed on the
Mortgaged Property by the contractor or any other parties, or for any
dangerous or defective condition of the Mortgaged Property, or for any
negligence in the management, upkeep, repair or control of the
Mortgaged Property resulting in loss, injury, or death to any
contractor, subcontractor, licensee, invited employee, agent or
stranger.
(e) TAXES. Mortgagor will pay before they become delinquent, all taxes
(both general and special), assessments, water rates, sewer service or
other governmental or municipal charges, fines or impositions lawfully
levied or assessed against the Mortgaged Property, or any part
thereof, or upon the rents, income and profits thereof, so that the
lien and priority of this Mortgage will be fully preserved; will
promptly at the request of Mortgagee deliver to Mortgagee the receipt
showing such payment; and will allow no payment of any taxes,
assessments or governmental charges by a third party with subrogation
attaching; nor permit the Mortgaged Property or any part thereof to be
sold or forfeited for any tax, assessment or governmental charge
whatsoever.
(f) FURTHER ASSURANCES, CONDEMNATION. Xxxxxxxxx will execute, acknowledge
and deliver all and every further assurance in law for the better
assuring, conveying, assigning and transferring to Mortgagee the
Mortgaged Property hereby conveyed in such manner as Mortgagee will
require. All awards of damages in connection with any condemnation or
exercise of the power of eminent domain for public use of or injury to
any of the Mortgaged Property are hereby assigned and will be paid to
Mortgagee, who may apply the same to payment of the indebtedness,
including a foreclosure deficiency and Mortgagee is hereby authorized,
in the name of Xxxxxxxxx, to execute and deliver valid acquittances
thereof and to appeal to any such award. Application of proceeds to
payment of Indebtedness will not extend, postpone, or waive
installments otherwise due, or change the amount of payments to be
made, and proceeds may be applied in such order and in such amounts as
Mortgagee may elect.
3. EVENTS OF DEFAULT. Mortgagee will have the Remedies and powers set forth
herein upon occurrence of any of the following "Events of Default": (a)
failure of Mortgagor or Obligor to make payment when due of the principal
or interest of the secured Indebtedness or failure to perform any terms of
the Obligations; (b) failure of Obligor to furnish satisfactory additional
collateral; (c) failure of Mortgagor to comply With any of the terms and
conditions of this Mortgage (d) death of Mortgagor or Obligor, dissolution,
termination of existence, insolvency, business failure, appointment of a
receiver for Mortgagor or Obligor or any property of Mortgagor or Obligor,
assignment for the benefit of creditors or commencement of any proceeding
under any bankruptcy, reorganization, arrangement or liquidation law for
Mortgagor or Obligator, or if such proceedings are commenced by a creditor
and remain undismissed for thirty (30) days; (e) failure of Mortgagor or
Obligor to pay when due any premium on any policy of life or other
insurance pledged hereunder, or held in connection with the Mortgaged
Property; (f) Mortgagee deeming itself insecure and in good faith believing
that the prospect of payment or performance by Mortgagor or Obligor is
impaired; (g) the filing of a Judgment or statutory lien or the institution
of any proceedings by foreclosure attachment levy or otherwise against
Mortgagor, Obligor, the Mortgaged Property or any other collateral securing
the Indebtedness; (h) failure of Mortgagor or Obligor to furnish Mortgagee
within thirty (30) days after written request by Mortgagee, current
financial statements in form satisfactory to Mortgagee or to permit
Inspection of any Mortgagor's or Obligor's books or records; (i) any
representation, warranty, statement, report, or application made, or
furnished, by Obligor or Mortgagor proving to have been false, or
erroneous, in any material respect at the time of the making thereof; (j)
the issuance of any tax levy or lien against Mortgagor or Obligor or the
failure to pay, withhold, collect or remit any tax when assessed or due;
(k) abandonment, sale, or transfer of the Mortgaged Property by contract to
sell or lease, by conveyance, assignment of lease, rents or rights thereto,
encumbering or granting other rights therein, by Mortgagor; (I) a bulk sale
of Obligor's assets; or (m) the suspension of liquidation of Obligor's
business.
4. REMEDIES. Upon an Event of Default Mortgagee may at its option without
notice and without affecting the validity or priority of the lien hereby
created or any right of Mortgagee hereunder:
(a) Perform any such defaulted covenant or agreement to such extent as
Mortgagee will determine and enter upon the Mortgaged Property,
inspect, repair and maintain the same and perform such other acts
thereon as Mortgagee we deem necessary or advisable for any of the
above purposes and all funds so advanced by Mortgagee with interest
thereon at the highest rate applicable to the Indebtedness as set
forth in any instrument evidencing the Indebtedness, from the date
advanced until paid will be secured hereby and will be repaid promptly
without demand. Nothing herein will be construed as requiring
Mortgagee to advance funds for any of the aforesaid purposes.
Mortgagee will have the right to take possession of the Mortgaged
Property, manage it and collect the rents, issues and profits
therefrom and apply the same less reasonable costs of collection upon
the Indebtedness. Any and all of the rights and remedies granted by
this paragraph will accrue and become available to Mortgagee upon such
default whether or not a receiver has been appointed or a foreclosure
action has been commenced;
(b) Declare without notice all sums secured hereby immediately due and
payable whether or not such default be remedied by Xxxxxxxxx, to
enforce any of the rights which accrue to Mortgagee hereunder and to
enforce any right or remedy of Mortgagee under the laws of the State
of Ohio. Upon commencement of any Judicial proceedings to enforce any
right under this Mortgage, the court in which such proceedings are
brought, at any time thereafter (without notice to Mortgagor or any
party claiming under Mortgagor, such notice being hereby expressly
waived, and without reference to the then value of the Mortgaged
Property, to the use of the Mortgaged Property as a homestead or to
the solvency or insolvency of any Obligor or other grounds for
extraordinary relief) may appoint a receiver for the benefit of
Mortgagee with power to take immediate possession of the Mortgaged
Property, manage, rent and collect the rents, issues and profits
thereof and such rents, issues and profits when collected may be
applied toward the payment of the indebtedness and the costs. taxes,
insurance or other items necessary for the protection and preservation
of the Mortgaged Property, including the expenses of such
receivership. In the event of a sale, Judicial or otherwise, of the
Mortgaged Property, the Mortgaged Property may be sold in one or more
parcels as the Mortgagee may determine.
3
Exhibit 10.33
5. WAIVER. To the extent permitted by law Xxxxxxxxx will not claim the benefit
of any stay, extension, valuation, appraisement or redemption law now or at
any time hereafter in force.
6. AVAILABILITY OF REMEDIES. Every right and remedy provided in this Mortgage
will be cumulative of every other right or remedy of Mortgagee whether
herein or by law conferred and may be enforced concurrently therewith and
no acceptance of the performance of any obligation as to which Mortgagor
will be in default, or waiver of particular or single performance of any
obligation or observance of any covenant, will be construed as a waiver of
the obligation or covenant or as a waiver of any other default then,
theretofore or thereafter existing. Mortgagee's acceptance of less than the
entire payment of principal due or receipt of interest computed at a rate
less than the maximum permitted to be charged under the terms of any
Obligation or Indebtedness will not constitute a waiver of Mortgagee's
rights hereunder to thereafter require payment of the full amount of
principal and interest computed at such maximum rate and receipt of
payments after maturity, by acceleration, declaration or otherwise of any
instrument of Indebtedness in an amount less than that due will not
constitute a waiver of Mortgagee s rights to full payment unless so agreed
in writing
7. INDULGENCE. Mortgagee may, at any time and without notice, deal with
Mortgagor or grant to Mortgagor or any Obligor any indulgence or
forbearance or any extension of time of payment of the Indebtedness, or a
release of liability for payment of the secured Indebtedness, or may, with
or without consideration, release portions of the Mortgaged Property from
the lien hereof. No such act or acts of Mortgagee will affect the personal
liability of any other Obligor for payment of the Indebtedness or the lien
of this Mortgage upon the remainder of the Mortgaged Property for the full
amount of the Indebtedness. Assumption of liability for the payment of the
Indebtedness by any other party will not release Mortgagor from liability
for the of secured Indebtedness, and the consent. Mortgagee to any such
assumption or to any sale, lease, conveyance or transfer of the Mortgaged
Property will not be so construed as a release of any Obligor. No delay or
omission of Mortgagee to exercise any right, power or remedy accuring upon
any default will exhaust or impair any such right, power or remedy or will
be construed to be a waiver of any such default, or acquiescence therein;
and every right power and remedy given by this Mortgage may be exercised
from time to time and as often as may be deemed expedient by Mortgagee
8. JOINT AND SEVERAL LIABILITY. The term "Mortgagor" wherever used in this
Mortgage will include the joint and several liability of not only the
persons signing this Mortgage, but also any person or persons who hereafter
may assume payment of any or all of the Indebtedness, together with the
respective heirs, representatives, successors and assigns of such persons,
and the term "Mortgagee" wherever used in this Mortgage will include any
lawful owner, holder or pledgee of any indebtedness.
9. FINANCIAL STATEMENTS. As long as the Indebtedness remains unpaid in whole
or in part, Xxxxxxxxx agrees to furnish Mortgagee upon request by
Mortgagee, at such times reasonably required by Mortgagee, financial
statements certified by Xxxxxxxxx, including balance sheets and statements
of income and expense for such period requested by Mortgagee including such
information with respect to the Mortgaged Property as Mortgagee will
request.
10. DOWER. The undersigned, spouse of Mortgagor, if any, does hereby remise,
release and forever quit-claim unto Mortgagee, its successors and assigns,
all right, title and expectancy of dower in the Mortgaged Property.
11. FEES AND EXPENSES. If Mortgagee incurs any costs and expenses (including
reasonable attorneys' fees) in connection with any action or proceeding to
sustain the lien of this Mortgage or its priority or to enforce any of
Mortgagee's rights hereunder or to recover any Indebtedness, or for any
title examination or title insurance policy relating to title to the
Mortgaged Property required by Mortgagee, or in curing any default of
Mortgagor under any lease, or other agreement, all such sums will be paid
by Mortgagor on demand, together with interest thereon at the default rate
from date of payment by Mortgagee. To the maximum extent permitted by law,
such sums will be secured by this Mortgage and will be a lien on the
Mortgaged Property prior to any right, title or interest claimed upon the
Mortgaged Property subordinate to the lien of this Mortgage.
12. TIME IS OF THE ESSENCE. Time is of the essence in the perfommance of the
terms of this Mortgage, the Indebtedness and the Obligations.
13. INDEMNIFICATION. Xxxxxxxxx will protect save harmless and indemnify
Mortgagee from and against any and all claims, Iiabilities, costs and
ex-penses, of whatever nature, (including court costs and attomeys' fees),
which may arise or result, directly or indirectly, by reason of the use,
occupation or operation of the Mortgaged Property or any part thereof, or
of any violation of any covenants of this Mortgage.
14. ASSIGNMENT OF RENTS AND LEASES. Mortgagor hereby absolutely and
unconditionally assigns, transfers and sets over unto Mortgagee, its
successors and assigns, all present and future leases covering all or any
part of the Mortgaged Property and all of the rents, income, receipts,
revenues issues and profits now due or which may hereafter become due under
the leases or any extensions or renewals thereof, together with any and all
rights and remedies which Mortgagor may have against any tenant under any
of the leases or others in possession of the Mortgaged Property.
Mortgagee shall not be obligated to perform or discharge any
obligation or duty to be performed or discharged by Mortgagor under any of
the leases; and Mortgagor hereby agrees to indemnify Mortgagee for, and to
save Mortgagee harmless from, any and all liability, damage or expense
arising from any of the leases or from this assignment, including
attorneys' fees. This assignment shall not place responsibility for the
control, care, management or repair of the Mortgaged Property upon
Mortgagee. Upon any default in the payment of the Indebtedness, or upon any
default in performance or observance of any of the terms, covenants or
agreements of this Mortgage or any one or more of the other Instruments
securing the Indebtedness and Obligations all rents assigned hereunder
shall be paid directly to Mortgagee, and Mortgagee may notify the tenants
under the leases (or any other parties in possession of the Mortgaged
Property) to pay all of the rents directly to Mortgagee. Rents collected by
Mortgagee may be applied toward the payment of taxes, assets, insurance
premiums, repairs, protection of the Mortgaged Property, and other charges
against the Mortgaged Property, or in the reduction of the Indebtedness and
the payment of interest as Mortgagee may elect.
Mortgagor shall not lease the Mortgaged Property without
Mortgagee's consent, however if Mortgagee consents to a lease Mortgagor
will comply with and observe the duties of lessor thereunder and Mortgagor
will furnish Mortgagee with a copy upon request. Xxxxxxxxx agrees to
provide Mortgagee a separate Assignment of Lease upon request to clarify
the rights of Xxxxxxxxx and Mortgagee therein. The absence of a separate
assignment will not affect the rights of Mortgagee granted hereby.
15. NOTICES. Any provision in this Mortgage requiring or permitting notice or
demand or request will be deemed satisfied by written notice personally
served on Mortgagor or Mortgagee, as the case may be, or as of the fifth
(5th) day after being mailed by United States Postal Service, registered or
certified mail, return receipt requested, postage prepaid, addressed to
Xxxxxxxxx as follows:
North Coast Energy, Inc.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxxxx, XX 00000
and addressed to Mortgagee as follows:
BANK ONE, Akron, NA
P.O. Box 3547
00 X. Xxxx Xxxxxx
Xxxxx, XX 00000-0000
Attn: Commercial Real Estate Dept.
Either party may, by written notice to the other in the above manner, specify a
different address for notice purposes.
16. CONFLICTS. The terms of this Mortgage will prevail over conflicting terms
set forth in any of the Obligations secured.
17. SEVERABILITY. In the event that any provision of this Mortgage, the
Indebtedness or Obligations or any other agreement conflicts with
applicable law, such conflict will not affect other provisions of this
Mortgage, which can be given effect without the conflicting provision, and
to this end the provisions of this Mortgage, the Indebtedness and
Obligations, and other agreements are declared to be severable.
18. FURTHER ASSURANCES. Mortgagor will, at its own expense, within fifteen (15)
days after request by Mortgagee, do, execute, acknowledge and deliver all
further acts, deeds, conveyances, transfers, security interests, security
agreements, financing statements, renewals, certificates, affidavits,
continuation statements and other documents and assurances necessary or
proper to effectuate, complete, or perfect, or to continue and preserve,
the Obligations of Mortgagor and the lien provided for by this Mortgage in
the Mortgaged Property or any part thereof.
4
Exhibit 10.33
Upon any failure by Xxxxxxxxx to do so, Mortgagee may make, execute,
record, file, re-record and/or re-file any and all such mortgages,
instruments, certificates and documents for and in the name of Xxxxxxxxx,
and Xxxxxxxxx hereby irrevocably appoints Mortgagee the agent and
attorney-in-fact of Mortgagor to do so.
19. GOVERNING LAW. This Mortgage will be construed, interpreted, enforced and
governed by and in accordance with laws of the State of Ohio.
20. CAPTIONS & HEADINGS, GENDER & NUMBER. The captions or headings of the
provisions hereof are for convenience of reference only and will not define
or limit the terms hereof. Whenever the singular or plural number,
masculine or feminine or neuter gender is used herein, it will equally
include the other.
21. PROVIDING ALWAYS, that if Xxxxxxxxx will pay to Mortgagee the secured
Indebtedness with interest and perform the secured Obligations at the time
and in the manner provided therein or under this Mortgage, then these
presents will be void and this Mortgage will be released and cancelled at
the cost of Mortgagor.
IN WITNESS WHEREOF, this Open End Mortgage has been executed at RAVENNA, OHIO,
this 30th day of APRIL , 1996.
NORTH COAST ENERGY, INC.
Signed, acknowledged and
delivered in the presence of: By: /s/ Xxx Xxxxxx,CFO/Treasurer
---------------------------------------------
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxx, Secretary/General Counsel
------------------------ ---------------------------------------------
/s/ Xxxxx X. Xxxxx
------------------
5
Exhibit 10.33
EXHIBIT A
OPEN END MORTGAGE BETWEEN
NORTH COAST ENERGY, INC.
------------------------
BANK ONE AKRON, NA
------------------
Mortgagee
LEGAL DESCRIPTION OF MORTGAGED PROPERTY
Situated in the City of Twinsburg, County of Summit and State of Ohio and known
as being part of Original Twinsburg Township Lot No. 5, Tract 3 and is bounded
and described as follows:
Beginning at the intersection of the center line of Xxxxxx Road (S.R. 91) and
the center line of Case Parkway (60 feet wide) as shown by the dedication plat
recorded in Plat Cabinet D, Slide 466 - 468 of Summit County Map Records;
thence North 88 deg. 43' 24" West 1512.00 feet along said center line of Case
Parkway;
thence North 01 deg. 16' 36" East 30.00 feet to a point on the northerly line of
Case Parkway, said point being the PRINCIPAL PLACE OF BEGINNING of the premises
herein described;
thence North 88 deg. 43' 24" West 290.00 feet along said northerly line of Case
Parkway;
thence North 01 deg. 16' 36" East 231.92 feet to a point on the northerly line
of said Original Lot;
thence North 89 deg. 57' 40" East 290.08 feet along said northerly Original Lot
line:
thence South 01 deg. 16' 36" West 238.58 feet to the principal place of
beginning and containing 68,221 square feet or 1.566 acres of land according to
the survey of Xxxxxxx & Associates, Inc., Professional Surveyors.
Property Located: 1993 Case Parkway, Twinsburg, Ohio
6
Exhibit 10.33
PERSONAL ACKNOWLEDGMENT
STATE OF_____________________________________________)
) SS.
COUNTY OF____________________________________________)
Before me, a Notary Public in and for said county and state, personally
appeared the above-named ____________________________ and
________________________________________ who acknowledged signing the foregoing
instrument and that the same is his/her/their free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at this
_____ day of __________, 19____.
---------------------------------------
Notaly Pubic
CORPORATE ACKNOWLEDGMENT
STATE OF Ohio )
-----------
) SS.
COUNTY OF Mahoning )
-----------
BEFORE ME, a Notary Public and for said county and state, personally
appeared the above-named North Coast Energy, Inc. , by Xxx Xxxxxx its CFO /
Treasurer , and Xxxxxx X. Xxxx its Secretary and General Counsel , who
acknowledged that he/she/they did sign the foregoing instrument for and on
behalf of the corporation by authority of its Board of Directors and that the
same is his/her/their free act and deed and the free act and deed of the
corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Youngstown, Ohio , this 30th day of April , 1996 .
/s/ Xxxxx X. Xxxxx
------------------------------
Notaly Pubic
XXXXX XXXX XXXXX, Notary Public
State of Ohio
My Commission Expires November 7, 2000
PARTNERSHIP ACKNOWLEDGMENT
STATE OF_____________________________________________)
) SS.
COUNTY OF____________________________________________)
BEFORE ME, a Notary Public in and for said county and state, personally
appeared the above-named __________________________________ ,
by ___________________________ and ________________________________ its
partners, who acknowledged that he/she/they did sign the foregoing instrument
for and on behalf of the partnership and that the same is his/her/their free act
and deed and the free act and deed of the partnership. IN TESTIMONY WHEREOF, I
have hereunto set my hand and official seal at this day of , 19
-------------------------------
Notaly Pubic
This instrument prepared by BANK ONE, Akron, NA ,
------------------------------------------
Address of BANK ONE: P.O. BOX 3547 00 X. Xxxx Xx., Xxxxx, XX 00000-3547
------------------------------------------------------------
-
7
Exhibit 10.33
Schedule "A"
Note Date: April 30, 1996
----------------
Loan Amount: $540,000.00
Term: 5 years
Rate: Fixed for 60 months at 8.58 %. Rate will be adjusted every five
years at 300 basis points over the then current five year U.S.
Treasury Constant Maturity Index.
Repayment: 60 level monthly principal and interest payments of $5248.19 based
on a 180 month amortization. Payment to adjusted every five years
based upon any change in rate.
Acknowledged:
North Coast Energy, Inc.
By: /s/ Xxx Xxxxxx, Cfo/Treasurer and
----------------------------------
/s/ Xxxxxx X. Xxxx, Secretary and General Counsel
-------------------------------------------------
Date: April 30, 1996
--------------------------------------
8
Exhibit 10.33
BANK 1 ONE BUSINESS PURPOSE PROMISSORY NOTE
Date April 30, 1996 Executed at Ravenna, Ohio Amount $ 540,000.00
--------------- ------- ---- --------------
(City) (State)
For value received, receipt of which is hereby acknowledged, the undersigned
jointly and severally promises to pay to the order of BANK ONE, Akron, NA ("BANK
ONE") at its principal office located at 00 X. Xxxx Xx., Xxxxx, Xxxx 00000 or at
such other place as BANK ONE may designate from time to time, in lawful money of
the United States of America, the principal sum of Five Hundred Forty Thousand
and no/100---------------------------------------------------------------------
DOLLARS or such lesser portion thereof as may have from time to time been
disbursed to, or for the benefit of the undersigned, and remaining unpaid
pursuant to the books or records of BANK ONE, together with interest on the
unpaid balance of principal advanced from the date(s) of disbursement until paid
in full as set forth below. Principal sum(s) disbursed and repaid will not be
available for redisbursement.
(If checked, the following is applicable:)
[ ] After ________________, 19 ___ ("FINAL DRAW DATE"), disbursements hereunder
will not be allowed.
RATE OF INTEREST AND ITS CALCULATION
[x]Fixed: Eight and Fifty-Eight One-Hundredths percent ( 8.58 %) per annum *See
attached Schedule "A"
[ ] Variable: Prime Rate plus _________________________ percent (___%) per annum
which will be adjusted to reflect the change in the Prime Rate:
[ ] on the first day of each month following the month in which the Prime
Rate changes
[ ] on the same day as the Prince Rate changes
"Prime Rate" means the rate announced from time to time by BANK ONE as its prime
rate.
Interest shall be calculated on a 360 day year basis and shall be calculated by
dividing the actual number of days which elapsed during the period interest
accrued by a year of 360 days times the interest rate in effect.
After this Note becomes due and payable, whether at maturity, by acceleration
or otherwise, the interest rate on the outstanding principal sum and accrued
interest will be the rate stated above plus ______ ____ percent (______%) per
annum.
BANK ONE shall have the right to assess a late payment processing fee in the
amount of the greater of $_________ or _____% of the scheduled payment in the
event of a default in payment that remains uncured for a period of at least
_________________ days.
TIME AND METHOD OF PAYMENT
[x] PRINCIPAL AND INTEREST DUE AND PAYABLE PERIODICALLY UNTIL THE MATURITY
DATE. On the MATURITY DATE all outstanding amounts of principal and
interest are immediately due and payable.
MATURITY DATE:
[ ] FOR FIXED AND VARIABLE RATE LOANS:
PRINCIPAL: Principal payment frequency:
[ ] Date of first principal payment:
_______________________________________, and continuing
[ ] Monthly [ ] Quarterly [ ] Semiannually [ ] Annually thereafter
until the MATURITY DATE. Principal payment amount until the
MATURITY DATE:
[ ] $--------------------------
[ ] one-__________________ (1/_______ ) of the outstanding
principal sum as of the FINAL DRAW DATE
INTEREST: Interest payment frequency:
Date of first interest payment:
[ ] Monthly [ ] Quarterly thereafter until the MATURITY
DATE.
[x] FOR FIXED RATE LOANS ONLY:
PRINCIPAL AND INTEREST: Principal and interest payment frequency:
Date of first principal and interest payment: May 30, 1996,
and continuing -------------
[ ] Monthly [ ]Quarterty until the MATURITY DATE.
Amount of payment: $ 5,248.19 .
------------
[ ]PRINCIPAL DUE AND PAYABLE ON THE MATURITY DATE, INTEREST DUE AND PAYABLE ON
THE MATURITY DATE OR PERIODICALLY:
[ ]MATURITY DATE:______________________________
PRINCIPAL: The principal balance is immediately due and payable on the
MATURITY DATE
INTEREST: Interest is due and payable:
[ ]on the MATURITY DATE
[ ]beginning _______________________ and continuing
[ ]Monthly [ ] Quarterly thereafter, until the MATURITY DATE
on which date all outstanding accrued and
unpaid interest shall be immediately due and
payable.
PRINCIPAL AND INTEREST DUE AND PAYABLE ON DEMAND. Principal and interest are
immediately due and payable on demand but until such time as demand for
payment is made, principal and accrued interest thereon is due and payable
as hereinafter provided:
PRINCIPAL: Principal payment frequency:
[ ] on demand [ ]Installments as follows:
Date of first principal payment: ____________, and continuing
[ ] Monthly [ ] Quarterly [ ]Semiannually [ ] Annually
thereafter until demand is made.
Principal payment amount until demand is made:
[ ] $
----------------------------
[ ] one- ___________________ (1/___________) of the
outstanding principal sum as of the FINAL DRAW DATE
INTEREST: Interest payment frequency:
Date of first interest payment: ______________, and continuing
[ ] Monthly [ ] Quarterly thereafter, until demand is made.
This Note [X] is [ ] is not issued in conjunction with an agreement or
letter dated February 9, 1996 , to which referenceis made
--- --
and [X] is [ ] is not supported by other security documents.
-------------------------------------------------------------------------------
WARNING--BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR
PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
GOODS, FAULTY GOODS, FAILURE ON HIS PART TO C0MPLY WITH THE AGREEMENT, OR ANY
OTHER CAUSE.
-------------------------------------------------------------------------------
North Coast Energy, Inc.
By: /s/ Xxx Xxxxxx, CFO/Treasurer
------------------------------------------------ ------------------------------------------ ------------------------------------
and /s/ Xxxxxx X. Xxxx, Secreatary and General
Counsel
------------------------------------------------ ------------------------------------------ ------------------------------------
------------------------------------------------ ------------------------------------------ ------------------------------------
Additional terms and conditions of this Promissory Note are contained on the
reverse side of this document.
--------------------------------------------------------------------------------
CAT NO. OOB94 (11
9
Exhibit 10.33
ADDITIONAL TERMS AND CONDITIONS OF PROMISSORY NOTE
1. All credits, deposits, accounts, securities or moneys of any signer,
endorser or guarantor hereof (Obligor", meaning each jointly and severally and
all other property or rights belonging to or in which Obligor has any interest,
now or hereafter pledged or hypothecated to BANK ONE or in the possession or
control of BANK ONE ("Collateral") shall be held by BANK ONE as security for the
payment of this Note, and of every other liability now or hereafter existing of
Obligor, absolute or contingent, due or to become due, and in whatsoever manner
acquired by or accruing to BANK ONE ("Obligations"). BANK ONE shall have the
right to setoff any such Collateral at any time without prior notice to Obligor.
2. If this Note is due and payable on demand it is subject to being called
at any time upon actual demand by BANK ONE. The inclusion of a payment schedule
is merely to provide terms for payment in the absence of actual demand and does
not affect or impair BANK ONE's absolute right to demand payment of this Note at
any time. Xxxxxxx agrees that BANK ONE may delay demand until, or make demand at
anytime before, any payment date specified in the demand payment section of this
Note.
3. At the option of BANK ONE, and without in any way limiting its right to
demand payment in full of this Note if it is due and payable on demand, all
Obligations shall become immediately due and payable without prior notice or
demand upon the occurrence of any of the following events of default: (a)
failure of Obligor to make payment when due of the principal or interest of this
Note and/or any of the Obligations; (b) failure of Obligor to furnish
satisfactory collateral or additional collateral, as the case may be, as
hereinafter agreed; (c) failure of Obligor to comply with any of the terms and
conditions of this Note and/or any of the Obligations or contained in any
security agreement or instrument securing this Note and/or any of the
Obligations; (d) death of Obligor; (e) dissolution of, termination of existence
of, insolvency of, business failure of, appointment of a receiver for, or
assignment for the benefit of creditors or a commencement of any proceeding
under any bankruptcy, reorganization, arrangement or liquidation law by or
against Obligor or any property of Obligor; (f) failure of Obligor to pay when
due any premium on any policy of life or other insurance pledged hereunder, or
held in connection with any Collateral; (g) BANK ONE deeming itself insecure and
in good faith believing that the prospect of payment or performance is impaired;
(h) the institution of any garnishment proceedings by attachment, levy or
otherwise against any deposit balance or Collateral maintained or deposited with
BANK ONE by Obligor; (i) failure of Obligor to either furnish BANK ONE within
thirty (30) days after written request by BANK ONE, current financial
statements, including income tax returns, in form satisfactory to BANK ONE or to
permit inspection of any of Obligor's books or records; (j) any representation,
warranty, statement, report, or application made, or furnished, by Obligor
proving to have been false, erroneous or misleading, in any material respect at
the time of the making thereof; (k) the issuance of any tax levy or lien against
Obligor or Obligor's failure to pay, withhold, collect or remit any tax when
assessed or due; (I) sale or transfer of Collateral out of Obligor's ordinary
course of business; (m) a bulk sale of Obligor's assets; or (n) suspension or
liquidation of Obligor's business.
4. No delay or omission on the part of BANK ONE in exercising any right
hereunder shall operate as a waiver of such right or of any other right under
this Note. A waiver on any one occasion shall not be construed as a bar to or
waiver of any such right and/or remedy on any future occasion.
5. Obligor waives presentment, demand, notice, protest and all other demands
and notices in connection with the delivery, acceptance, performance, default or
enforcement of this Note; and assents to any extension or postponement of the
time of payment, modification or waiver of any payment amount or any other
indulgence, and/or to the addition or release of any other party or person
liable hereon or of any Collateral herefore.
6. This Note shall be governed by and construed in accordance with the laws
of the State of Ohio in all respects.
7. Obligor will pay on demand all costs of collection and attorneys fees
incurred or paid by BANK ONE in enforcing this Note when the same have become
due, whether by acceleration or otherwise, if allowable by law.
8. BANK ONE shall have the right to charge interest on the amount of any
interest payment not paid as provided in this Note at the same rate as
applicable to the principal sum.
9. Payments shall be allocated between principal, interest and fees, if any,
in the discretion of BANK ONE, and, when applicable, any prepayments WILL BE
APPLIED TO PRINCIPAL in the inverse order of scheduled maturity.
10. All rights, powers, privileges and immunities herein granted to BANK ONE
shall extend to its successors and assigns and any other legal holder of this
Note. All rights, powers, privileges and immunities of Obligor hereunder may not
in any way be assigned, transferred or sold. BANK ONE at any time is authorized
to correct patent errors and fill in any blanks herein.
11. Obligor acknowledges that this Note evidences a loan made primarily for
business, commercial or agricultural purposes and not primarily for personal,
family or household purposes.
12. When any Obligation becomes due, whether by acceleration or otherwise,
and at any time thereafter, BANK ONE shall have all of the remedies provided in
the security documents including the remedies of a secured party under the
Uniform Commercial Code. Unless the Collateral is perishable or threatens to
decline speedily in value or is of a type customarily sold on a recognized
market, BANK ONE will give Obligor reasonable notice of the time and place of
any public sale thereof or of the time after which any private sale or other
intended disposition is to be made. The requirement of reasonable notice shall
be met if such notice is mailed, postage prepaid, to the last known address of
the Obligor at least ten (10) days before the time of the sale or disposition.
13. When any Obligation becomes due, whether by acceleration or otherwise,
and at any time thereafter, BANK ONE is empowered to collect, sell, assign,
transfer, set over and deliver the whole or any part of any Collateral through
any stock exchange, broker or agent or at any public or private sale, either for
cash or credit or for future delivery, without assumption of credit risk, and at
any such sale BANK ONE may become the purchaser of any part of the Collateral
discharged from right of redemption. Upon any such sale, after deducting all
costs and expenses of every kind related to retaking, storing and selling the
Collateral, the residue of the proceeds thereof may be applied as BANK ONE may
determine toward the payment of any or all of the Obligations, whether due or
not, returning the overage, if any, to Obligor and Obligor shall be and remain
liable to BANK ONE for every and any deficiency after application of such
proceeds.
14. Right is expressly granted to BANK ONE at its option to transfer at any
time to itself or to its nominee any securities pledged hereunder, to receive
and retain the income thereon, all splits, substitutions and divisions, and hold
the same as security herefore, or apply it on the principal or interest which
has become due on any Obligation, whether by acceleration or otherwise, and, in
the case of voting shares or interests pledged, to vote the same when BANK ONE
deems the exercise of such power necessary to maintain or protect such
Collateral.
15. When any Obligation becomes due, whether by acceleration or otherwise,
and at any time thereafter, BANK ONE may, at its option, demand, sue for,
collect, or make any compromise or settlement it deems desirable with reference
to the Collateral. BANK ONE shall not be bound to take any steps necessary to
preserve any rights in the Collateral against prior parties, inasmuch as Xxxxxxx
agrees to assume such responsibility. BANK ONE shall have no duty with respect
to collection or protection of the Collateral or of any income on the Collateral
as to the preservation of any rights pertaining to the Collateral beyond safe
custody.
16. Obligor will deliver to BANK ONE satisfactory collateral or additional
collateral, as the case may be, should BANK ONE so require.
17. Xxxxxxx agrees that BANK ONE may take possession of any Collateral
without prior judicial hearing or process, hereby expressly waives any right to
such judicial hearing process, and hereby assents to any substitution, exchange
or release of Collateral.
18. When any Obligation becomes due, by acceleration or otherwise, BANK ONE
shall have the right, without notice to Obligor, any party claiming under
Obligor, or any other party, such notice being hereby expressly waived, and
without regard to the adequacy of value of the Collateral or the solvency or
insolvency of Obligor, to the appointment of a receiver by a court of competent
jurisdiction chosen solely by BANK ONE, upon application at any time, whether
prior to or aver a judgment has been obtained against Obligor, to take
possession of the assets and/or business of Obligor together with its books and
records, to maintain or to liquidate said assets and/or business, to collect the
proceeds of the Collateral and apply the net proceeds to any Obligation. Obligor
consents to jurisdiction and venue for the appointment of such receiver by such
court and agrees that any receiver so appointed may take possession of the
assets and/or business of the Obligor, together with the Collateral in any other
jurisdiction in which the Collateral may be located.
19. Obligor authorizes BANK ONE to exchange BANK ONE deposit, credit and
borrowing information about Obligor with third parties.
20. Obligor jointly and severally hereby authorizes any attorney at law to
appear in an ACTION ON THIS NOTE AT ANY TIME AFTER THE SAME BECOMES due, whether
by acceleration or otherwise, in any court of record in or of the State of Ohio,
or of elsewhere, and to waive the issuing and service of process against any or
all of said parties, enter an appearance and to confess judgment in favor of
BANK ONE against any or all of said parties for the amount that may be due,
together with costs of suit, and to release all errors and waive all rights of
appeal and stay of execution from the judgment rendered. After the judgment is
entered against one or more of said parties, the powers herein conferred may be
exercised as to one or more of the others. The death of Xxxxxxx shall not impair
the authority herein granted as to the survivor or survivors of Obligor.
