HAWK CORP
EX-10.24
<DOCUMENT>
<TYPE>EX-10.24
<SEQUENCE>8
<FILENAME>l89585aex10-24.txt
<DESCRIPTION>EX-10.24
<TEXT>
<PAGE>   1

                                                                   Exhibit 10.24

                                     FORM OF

                            OPEN ENDED OHIO MORTGAGE


                               OPEN-END MORTGAGE,
                ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING

               Maximum Principal Amount Not to Exceed $65,000,000


      THIS OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
(as the same may from time to time be amended, restated or otherwise modified,
this "Agreement") is made as of the 31st day of July, 2001, by [              ],
an Ohio corporation, 200 Public Square, Suite 30-5000, Cleveland, Ohio 44114
("Mortgagor") in favor of KEYBANK NATIONAL ASSOCIATION, a national banking
association, as administrative agent for the Lenders, as hereinafter defined (in
its capacity as agent, for the benefit of and on behalf of the Lenders,
"Administrative Agent").

      WHEREAS, HAWK CORPORATION, a Delaware corporation ("Borrower"),
Administrative Agent, and the other financial institutions listed on Annex I to
the Credit Agreement, as hereinafter defined (collectively, together with their
respective successors and assigns, "Lenders" and, individually, "Lender"), are
parties to that certain Credit Agreement, dated as of May 1, 1998 (as amended
and as the same may from time to time be further amended, restated or otherwise
modified, the "Credit Agreement"; the capitalized terms defined therein and not
otherwise defined in this Agreement being used herein as therein defined),
pursuant to which the Lenders will, among other things, continue to grant to
Borrower the Loans, as defined in the Credit Agreement, and Letters of Credit,
as defined in the Credit Agreement, and other extensions of credit pursuant to
the Credit Agreement;

      WHEREAS, Mortgagor, a subsidiary of Borrower whose financing is provided
by the Loans and Letters of Credit, deems it to be in the direct pecuniary and
business interests of Mortgagor that Borrower continue to obtain from the
Lenders the Commitment, as defined in the Credit Agreement, and the Loans and
Letters of Credit provided for in the Credit Agreement; and

      WHEREAS, Mortgagor understands that the Lenders are willing to continue to
grant such financial accommodations to Borrower only upon certain terms and
conditions, one of which is that Mortgagor execute and deliver this Agreement
and this Agreement is being executed and delivered in consideration of each
financial accommodation, granted to Borrower by Administrative Agent and the
Lenders and for other valuable considerations.

      NOW, THEREFORE, TO SECURE TO ADMINISTRATIVE AGENT, for the benefit of the
Lenders, all of the following (collectively, the "Obligations"): (a) all Loans
and Letters of Credit; (b) all other indebtedness now owing or hereafter
incurred by Borrower to Administrative
<PAGE>   2
Agent or any Lender pursuant to the Credit Agreement and any Note executed in
connection therewith; (c) each renewal, extension, consolidation or refinancing
of any of the foregoing, in whole or in part; (d) all interest from time to time
accruing on any of the foregoing, and all fees and other amounts payable by
Borrower pursuant to the Credit Agreement; (e) all obligations and liabilities
of Borrower now existing or hereafter incurred to Administrative Agent or any
Lender (or any affiliate of such Lender) under, arising out of, or in connection
with any Hedge Agreement between Borrower and the Administrative Agent or any
Lender (or any of their respective affiliates) in connection with the
Obligations; (f) every other liability, now or hereafter owing to Administrative
Agent or any Lender by Borrower or Mortgagor pursuant to the Credit Agreement or
any other Credit Document; (g) the payment of all other sums, with interest
thereon, advanced in accordance herewith to protect the security of this
Agreement; and (h) the performance of the covenants and agreements of Mortgagor
contained in this Agreement,

      Mortgagor does hereby MORTGAGE, GRANT, CONVEY AND ASSIGN to Administrative
Agent, for the benefit of the Lenders, the real property described in Exhibit A
attached hereto and made a part hereof, together with all present and future
right, title and interest of Mortgagor therein or in any way appertaining
thereto, and all buildings, improvements and tenements now or hereafter erected
on the property, and all heretofore or hereafter vacated alleys and streets
abutting the property, and all easements, rights, appurtenances, rents,
royalties, mineral, oil and gas rights and profits, water, water rights, and
water stock appurtenant to the property, and all fixtures, machinery, equipment,
engines, boilers, incinerators, building materials, appliances and goods of
every nature whatsoever now or hereafter owned by Mortgagor and located in, or
on, or used, or intended to be used in connection with the property, including,
but not limited to, those for the purposes of supplying or distributing heating,
cooling, electricity, gas, water, air and light; all cranes and materials
handling equipment; and all elevators, and related machinery and equipment, fire
prevention and extinguishing apparatus, security and access control apparatus,
plumbing, bath tubs, water heaters, water closets, stoves, refrigerators,
dishwashers, disposals, washers, dryers, awnings, storm windows, storm doors,
screens, blinds, shades, curtains and curtain rods, mirrors, cabinets, paneling,
rugs, attached floor coverings, furniture, fixtures, equipment; and all rentals,
revenues, payments, repayments, deposits, income, charges and moneys derived
from the use, lease, sublease, rental or other disposition of the property and
the proceeds from any insurance or condemnation award pertaining thereto; and
all other property (tangible and intangible) now owned or hereafter acquired by
Mortgagor and used in, on or about the subject real estate or arising from the
operation of the property, all of which, including replacements and additions
thereto and proceeds therefrom, shall be deemed to be and remain a part of the
real property covered by this Agreement; and all of the foregoing, including
said real property, are herein referred to as the "Property".

      TO HAVE AND TO HOLD, Mortgagor represents and warrants that (i) Mortgagor
is lawfully seized of the estate hereby conveyed and has the right to mortgage,
grant, convey and assign the Property, (ii) the Property is unencumbered except
for the matters approved by Administrative Agent and the Lenders and described
on Exhibit B attached hereto and made a part hereof ("Permitted Encumbrances"),
and (iii) Mortgagor will warrant and defend generally the title to the Property
against all claims and demands whatsoever, except as aforesaid.


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<PAGE>   3
      Mortgagor and Administrative Agent, on behalf of the Lenders, covenant and
agree as follows:

      1. Payment of Obligations. Mortgagor shall promptly pay and perform all of
the Obligations when due.

      2. Open-End Mortgage. This Agreement is an Open-End Mortgage under Section
5301.232 of the Ohio Revised Code and is intended to secure all of the
Obligations, including such Obligations that may be advanced to or payable by
Mortgagor after the date of this Agreement. This Agreement shall secure the
maximum principal amount of up to Sixty-Five Million Dollars ($65,000,000),
together with interest thereon and such other amounts as shall become due and
owing to Administrative Agent and the Lenders from Mortgagor pursuant this
Agreement.

      3. Insurance. Mortgagor shall keep all improvements now existing or
hereafter erected on the Property insured against loss by fire and such other
hazards, casualties, and contingencies in such form, written by Mortgagor, in
such amounts, for such period, and against such risks as may be acceptable to
Administrative Agent, with provisions satisfactory to Administrative Agent, for
payment of all losses thereunder to Administrative Agent, for the benefit of the
Lenders, and Mortgagor as its interest may appear (loss payable endorsement in
favor of Administrative Agent, for the benefit of Lenders), and, if required by
Administrative Agent, Mortgagor shall deposit the policies with Administrative
Agent. Any such policies of insurance shall provide for no fewer than thirty
(30) days prior written notice of cancellation to Administrative Agent. In the
event of foreclosure of this Agreement, all right, title, and interest of
Mortgagor in and to any insurance policies then in force shall pass to the
purchaser at foreclosure sale, and Administrative Agent is hereby appointed
attorney in fact for Mortgagor for the purpose of assigning and transferring
such policies and receiving all or any part of the proceeds therefrom. The
insurance proceeds or any part thereof may be applied by Administrative Agent,
at Administrative Agent's option, either to the reduction of the Obligations or
to restoration or repair of the property damaged.

      4. Funds for Taxes, Insurance and Other Charges. Upon default in payment
by Mortgagor of any of the following described items, or upon the occurrence of
an Event of Default, as hereinafter defined, Administrative Agent shall have the
right, at Administrative Agent's option, to require Mortgagor to pay to
Administrative Agent on the first day of each month, until the Obligations have
been paid in full, a sum (herein "Funds") equal to one-twelfth of (a) the yearly
water and sewer rates and taxes and assessments that may be levied on the
Property and (b) the yearly premium installments for fire and other hazard
insurance, rent loss insurance (if applicable) and such other insurance covering
the Property as Administrative Agent may require pursuant to the Credit
Agreement, all as reasonably estimated initially and from time to time by
Administrative Agent on the basis of assessments and bills and reasonable
estimates thereof. Any waiver by Administrative Agent of a requirement that
Mortgagor pay such Funds may be revoked by Administrative Agent, in
Administrative Agent's sole discretion, at any time upon notice in writing to
Mortgagor. Administrative Agent may require Mortgagor to pay to Administrative
Agent, in advance, such other Funds for other taxes, charges, premiums,
assessments and impositions in connection with Mortgagor or the Property that
Administrative Agent shall reasonably deem necessary to protect Administrative
Agent's interests (herein


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<PAGE>   4
"Other Impositions"). Unless otherwise provided by applicable law,
Administrative Agent, at Administrative Agent's option, may require Funds for
Other Impositions to be paid by Mortgagor in a lump sum (not exceeding Other
Impositions due for a one-year period) or in periodic installments.

            The Funds shall be held by Administrative Agent and shall be applied
to pay such rates, rents, taxes, assessments, insurance premiums and Other
Impositions so long as no Event of Default has occurred. Administrative Agent
shall make no charge for so holding and applying the Funds, analyzing such
account or for verifying and compiling said assessments and bills, unless
Administrative Agent pays Mortgagor interest, earnings or profits on the Funds
and applicable law permits Administrative Agent to make such a charge. Unless
applicable law requires interest, earnings or profits on the Funds to be paid,
Administrative Agent shall not be required to pay Mortgagor any interest,
earnings or profits on the Funds. Administrative Agent shall give to Mortgagor,
without charge, an annual accounting of the Funds showing credits and debits to
the Funds and the purpose for which each debit to such Funds was made. The Funds
are pledged as additional security for the Obligations and shall be subject to
the right of set off.

            If the amount of the Funds held by Administrative Agent at the time
of the annual accounting thereof shall exceed the amount deemed necessary by
Administrative Agent to provide for the payment of water and sewer rates, taxes,
assessments, insurance premiums, rents and Other Impositions, as such payments
become due, Administrative Agent (in its sole discretion) may either (i) return
the amount of the excess to Mortgagor or (ii) apply a part or all of such excess
at such time or times as Administrative Agent may elect to the Obligations. If,
at any time, the amount of the Funds held by Administrative Agent shall be less
than the amount deemed necessary by Administrative Agent to pay water and sewer
rates, taxes, assessments, insurance premiums, rents and Other Impositions, as
such payments become due, Mortgagor shall, on demand, pay such deficiency. Upon
the occurrence of an Event of Default, Administrative Agent may apply, in any
amount and in any order as Administrative Agent shall determine, in
Administrative Agent's sole discretion, any Funds held by Administrative Agent
at the time of application (A) to pay rates, rents, taxes, assessments,
insurance premiums and Other Impositions that are now or shall hereafter become
due; or (B) as a credit against sums secured by this Agreement. Upon release of
this Agreement and payment in full of the Obligations, Administrative Agent
shall promptly refund to Mortgagor any Funds held by Administrative Agent.

      5. Charges; Mechanics Liens. Mortgagor shall pay all water and sewer
rates, rents, taxes assessments, premiums, and Other Impositions (not being
diligently contested by Mortgagor (a) in a timely manner and (b) with the
support of adequate financial reserves), attributable to the Property. Mortgagor
shall promptly discharge any lien that has, or may have, priority over or
equality with, the lien of this Agreement, other than Permitted Encumbrances.

            If a mechanic's lien is filed against the Property, Mortgagor shall
promptly notify Administrative Agent and, at Administrative Agent's request,
shall deliver to Administrative Agent, either of the following, at Mortgagor's
option, (i) a cash deposit or (ii) an indemnity bond satisfactory to
Administrative Agent issued by a surety satisfactory to Administrative Agent, in
the amount claimed by any such lien, together with an additional sum necessary
to pay all costs, interest and penalties that may be payable in connection
therewith. Without Administrative


                                       4
<PAGE>   5
Agent's prior written consent, Mortgagor shall not allow any lien, encumbrance,
or other interest in the Property to be perfected against the Property, other
than Permitted Encumbrances, unless Mortgagor is then diligently contesting same
and has, as to the lien, encumbrance or interest being contested, complied with
(i) or (ii) of the preceding sentence.

      6. Preservation and Maintenance of Property. Mortgagor (a) shall not
commit waste or permit impairment or deterioration of the Property; (b) shall
not abandon the Property; (c) shall, unless Administrative Agent withholds
insurance proceeds as security for or application to the Obligations as provided
in the Credit Agreement, restore or repair promptly and in a good and
workmanlike manner all or any part of the Property to the equivalent of its
original condition, or such other condition as Administrative Agent may approve
in writing, in the event of any damage, injury or loss thereto, whether or not
insurance proceeds are available to cover in whole or in part the costs of such
restoration or repair unless the improvements constituting the Property are (i)
totally destroyed, (ii) insurance has been maintained thereon as required by
this Agreement, and (iii) Administrative Agent applies the proceeds of such
insurance to payment of the Obligations; (d) shall keep the Property, including
improvements, fixtures, equipment, machinery and appliances, in good repair and
shall replace improvements, fixtures, equipment, machinery and appliances on the
Property owned by Mortgagor when necessary to keep such items in good repair;
(e) shall comply in all material respects with all laws, ordinances, regulations
and requirements of any governmental body applicable to the Property, including,
without limitation, the American with Disabilities Act, as it may be amended
from time to time; and (f) shall give notice in writing to Administrative Agent
of, appear in and defend, any action or proceeding purporting to affect the
Property, the security of this Agreement or the rights or powers of
Administrative Agent, except for any such action or proceeding caused by the
gross negligence or intentional misconduct of Administrative Agent. Unless
required by applicable law or unless Administrative Agent has otherwise
consented in writing, neither Mortgagor nor any tenant or other Person shall
remove, demolish or alter any improvement now existing or hereafter erected on
the Property or any fixture (other than trade fixtures), equipment, machinery or
appliance in or on the Property owned by Mortgagor and used or intended to be
used in connection with the Property, except as permitted pursuant to the Credit
Agreement.

      7. Use of Property. Unless required by applicable law or unless
Administrative Agent has otherwise agreed in writing, Mortgagor shall not allow
changes in the use for which all or any part of the Property was intended at the
time this Agreement was executed. Mortgagor shall not initiate or acquiesce in a
change in the zoning classification of the Property without Administrative
Agent's prior written consent.

      8. Protection of Administrative Agent's Security. If Mortgagor fails to
perform the covenants and agreements contained in this Agreement, or if any
action or proceeding is commenced that affects the Property or title thereto or
the interest of Administrative Agent therein, including, but not limited to,
eminent domain, insolvency, enforcement of local laws, or arrangements or
proceedings involving a bankrupt or decedent, then Administrative Agent, at
Administrative Agent's option, may make such appearances, disburse such sums and
take such action as Administrative Agent deems necessary, in its sole
discretion, to protect the interests of Administrative Agent and the Lenders,
including, but not limited to, (a) disbursement of attorneys' fees; (b) entry
upon the Property to remedy any failure of Mortgagor to perform hereunder; and
(c) procurement of satisfactory insurance.


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<PAGE>   6
            Any amounts disbursed by Administrative Agent pursuant to this
Section 8, with interest thereon, shall become part of the Obligations and shall
be secured by this Agreement. Unless Mortgagor and Administrative Agent agree in
writing to other terms of payment, such amounts shall be immediately due and
payable and shall bear interest from the date of disbursement, unless collection
from Mortgagor of interest at such rate would be contrary to applicable law, in
which event such amounts shall bear interest at the highest rate that may be
collected from Mortgagor under applicable law. Mortgagor hereby covenants and
agrees that Administrative Agent shall be subrogated to the lien of any mortgage
or other lien discharged, in whole or in part, by the Obligations. Nothing
contained in this Section 8 shall require Administrative Agent to incur any
expense or take any action hereunder.

            The procurement of insurance of the payment of taxes or other liens
or charges by Administrative Agent shall not be a waiver of the right of
Administrative Agent or the Lenders to accelerate the maturity of any of the
Obligations secured by this Agreement. Administrative Agent's receipt of any
awards, proceeds or damages under the insurance or condemnation provisions of
the Credit Agreement or this Agreement shall not operate to cure or waive any
default in payment of sums secured by this Agreement.

      9. Condemnation. Mortgagor shall promptly notify Administrative Agent of
any action or proceeding relating to any condemnation or other taking, whether
direct or indirect, of the Property, or part thereof, and Mortgagor shall appear
in and prosecute any such action or proceeding unless otherwise directed by
Administrative Agent in writing. Mortgagor authorizes Administrative Agent, at
Administrative Agent's option, as attorney-in-fact for Mortgagor, to commence,
appear in and prosecute, after the occurrence of an Event of Default, in
Administrative Agent's or Mortgagor's name, any action or proceeding relating to
any condemnation or other taking of the Property, whether direct or indirect,
and to settle or compromise any claim in connection with such condemnation or
other taking. The proceeds of any award, payment or claim for damages, direct or
consequential, in connection with any condemnation or other taking, whether
direct or indirect, of the Property, or part thereof, or for conveyances in lieu
of condemnation, are hereby assigned to and shall be paid to Administrative
Agent.

            With the consent of Administrative Agent, which consent may be
withheld in Administrative Agent's sole discretion, Mortgagor may apply such
awards, payments, proceeds or damages, after the deduction of Administrative
Agent's expenses incurred in the collection of such amounts, to restoration or
repair of the Property. Otherwise, such sums so received shall be applied to
payment of the Obligations. Mortgagor agrees to execute such further evidence of
assignment of any awards, proceeds, damages or claims arising in connection with
such condemnation or taking as Administrative Agent may reasonably require.

      10. Estoppel Certificate. Mortgagor shall, within ten (10) days of a
written request from Administrative Agent, furnish Administrative Agent with a
written statement, duly acknowledged, setting forth the sums secured by this
Agreement and any right of set-off, counterclaim or other defense that exists
against such sums and any Obligations.

      11. Uniform Commercial Code and Fixture Filing. This Agreement shall also
constitute a "fixture filing" under the Uniform Commercial Code, as adopted in
Ohio for the


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<PAGE>   7
purpose of perfecting Administrative Agent's security interest in all of
Mortgagor's property now owned or hereafter acquired which is or becomes a
"fixture" to the Property under the Uniform Commercial Code, as in effect from
time to time in Ohio, with the names and addresses of the "debtor" and "secured
party" for such purpose being:

          Debtor:         [                    ]
                          [                    ]
                          [                    ]
                          Attn:  President

          Secured Party:  KeyBank National Association, as Administrative Agent
                          127 Public Square
                          Cleveland, Ohio  44114
                          Attn:  Large Corporate Group

      12. Leases of the Property. Mortgagor shall comply with and observe
Mortgagor's obligations as landlord or as tenant, as the case may be, under any
leases of the Property or any part thereof. Mortgagor shall furnish
Administrative Agent with executed copies of the leases now existing or
hereafter made of all or any part of the Property, and all future leases and
amendments or modifications thereto shall be subject to Administrative Agent's
prior written approval. Unless otherwise directed by Administrative Agent, all
leases of the Property made after the date hereof shall specifically provide
that such leases are subordinate to this Agreement; that the tenant attorns to
Administrative Agent, such attornment to be effective upon Administrative
Agent's acquisition of title to the Property; that the tenant agrees to execute
such further evidences of attornment as Administrative Agent may from time to
time request; and that the attornment of the tenant shall not be terminated by
foreclosure. Mortgagor shall not, without Administrative Agent's written
consent, execute, modify, surrender or terminate, either orally or in writing,
any lease hereafter made of all or any part of the Property, permit an
assignment or sublease of such a lease, or request or consent to the
subordination of any lease of all or any part of the Property to any lien
subordinate to this Agreement, provided that such leases are on commercially
reasonable terms. If Mortgagor becomes aware that any tenant proposes to do, or
is doing, any act or thing that may give rise to any right to set-off against
rent, Mortgagor shall (a) take such steps as shall be reasonably calculated to
prevent the accrual of any right to a set-off against rent, (b) notify
Administrative Agent thereof and of the amount of said set-offs, and (c) within
twenty (20) days after such accrual, reimburse the tenant who shall have
acquired such right to set-off or take such other steps as shall effectively
discharge such set-off and as shall assure that rents thereafter due shall
continue to be payable without set-off or deduction.

      13. Remedies Cumulative. Each remedy provided in this Agreement is
distinct and cumulative to all other rights or remedies under this Agreement or
the Credit Agreement or afforded by law or in equity, and may be exercised
concurrently, independently, or successively, in any order whatsoever.

      14. Transfers of the Property; Changes in Control or Ownership of
Mortgagor. Except as expressly permitted pursuant to the Credit Agreement,
Mortgagor shall not (a) voluntary or involuntary sell, lease, exchange, assign,
convey, transfer or otherwise dispose of all or any portion of the Property (or
any interest therein), or all or any of the beneficial ownership


                                       7
<PAGE>   8
interest in Mortgagor, or (b) convey to any Person, other than Administrative
Agent, a security interest in the Property or any part thereof or voluntarily or
involuntarily permit or suffer the Property to be further encumbered.

      15. Credit Agreement Provisions. Mortgagor agrees to comply with the
covenants and conditions of the Credit Agreement that is hereby incorporated by
reference in and made a part of this Agreement. All sums disbursed by
Administrative Agent to protect the security of this Agreement shall be treated
as Related Expenses. All such sums shall bear interest from the date of
disbursement. In the event of any conflict or inconsistency between this
Agreement and the Credit Agreement, the terms of the Credit Agreement shall
control. As used herein, "Related Expenses" shall mean any and all reasonable
costs, liabilities and expenses (including, without limitation, losses, damages,
penalties, claims, actions, reasonable attorneys' fees, legal expenses,
judgments, suits and disbursements) (a) incurred by Administrative Agent, or
imposed upon or asserted against Administrative Agent or any Lender, in any
attempt by Administrative Agent and the Lenders to (i) obtain, preserve,
perfect, or enforce any security interest evidenced by this Agreement, the
Credit Agreement, any Credit Document, or any other document, instrument or
agreement executed in connection with any of the foregoing; (ii) obtain payment,
performance or observance of any and all of the Obligations; or (iii) maintain,
insure, audit, collect, preserve, repossess or dispose of any of the Property or
any other collateral securing the Obligations, including, without limitation,
costs and expenses for appraisals, assessments and audits of Borrower or any
such collateral; or (b) incidental or related to (a) above, including, without
limitation, interest thereupon from the date incurred, imposed or asserted until
paid.

      16. Notice. Except as otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including
telegraphic, telex, facsimile transmission or cable communication) and mailed,
telegraphed, telexed, transmitted, cabled or delivered, if to Mortgagor, at 200
Public Square, Suite 30-5000, Cleveland, Ohio 44114, Attn: Vice
President-Finance, if to any Lender, at its address specified for such Lender on
Annex I to the Credit Agreement, and if to Administrative Agent, at the Notice
Office, as defined in the Credit Agreement; or at such other address as shall be
designated by any party in a written notice to the other parties hereto. All
such notices and communications shall be mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, and shall be effective when
received.

      17. Successors and Assigns Bound; Agents; Captions. The covenants and
agreements herein contained shall bind, and the rights hereunder shall inure to,
the respective successors and permitted assigns of Administrative Agent, the
Lenders and Mortgagor. In exercising any rights hereunder or taking any actions
provided for herein, Administrative Agent may act through its employees, agents
or independent contractors as authorized by Administrative Agent. The captions
and headings of the Sections of this Agreement are for convenience only and are
not to be used to interpret or define the provisions hereof.

      18. Governing Law; Severability. This Agreement shall be governed by the
laws of the State of Ohio, without regard to principles of conflicts of laws. In
the event that any provision of this Agreement conflicts with applicable law,
such conflict shall not affect other provisions of this Agreement that can be
given effect without the conflicting provisions, and to this end the provisions
of this Agreement are declared to be severable.


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<PAGE>   9
      19. Waiver of Marshaling. In the event of foreclosure of the lien of this
Agreement, the Property may be sold in one or more parcels or as an entirety as
Administrative Agent may elect.

            Notwithstanding the existence of any other security interests in the
Property held by Administrative Agent, or by any other Person, Administrative
Agent shall have the right to determine the order in which any or all of the
Property shall be subjected to the remedies provided herein. Administrative
Agent shall have the right to determine the order in which any or all of the
Obligations are satisfied from the proceeds realized upon the exercise of the
remedies provided herein. Mortgagor, any Person that consents to this Agreement,
and any Person that now or hereafter acquires a security interest in the
Property and that has actual or constructive notice hereof, hereby waives any
and all right to require the marshaling of assets in connection with the
exercise of any of the remedies permitted by applicable law or provided herein.

      20. Assignment of Rents; Appointment of Receiver; Agent in Possession.
Mortgagor hereby absolutely and unconditionally assigns and transfers to
Administrative Agent all of the leases, rents and revenues of the Property,
including those now due, past due, or to become due by virtue of any lease or
other agreement for the occupancy or use of all or any part of the Property,
regardless to whom the rents and revenues of the Property are payable. Although
this Agreement is a present assignment, Administrative Agent shall not exercise
any of the rights or powers herein conferred upon it until an Event of Default
shall have occurred. Mortgagor hereby authorizes Administrative Agent or
Administrative Agent's agents to collect the aforesaid rents and revenues and
hereby directs each tenant of the Property to pay such rents to Administrative
Agent or Administrative Agent's agents. Upon the occurrence of an Event of
Default, and without the necessity of Administrative Agent entering upon and
taking and maintaining full control of the Property in person, by agent or by a
court appointed receiver, Administrative Agent shall immediately be entitled to
possession of all rents and revenues of the Property as specified in this
Section 20 as the same become due and payable (including but not limited to
rents then due and unpaid) and all such rents received by Mortgagor shall
immediately, upon delivery of such notice, be held by Mortgagor, as trustee for
the benefit of Administrative Agent only. This Section 20 may be supplemented by
a separate assignment of leases and rents agreement entered into by and between
Administrative Agent and Mortgagor, which instrument shall set forth more fully
Administrative Agent's rights with respect to the leases, rents and revenue of
the Property.

      21. Assignment of Construction Rights. From time to time, as
Administrative Agent deems necessary to protect its interests, Mortgagor shall,
upon request of Administrative Agent, execute and deliver to Administrative
Agent, in such form as Administrative Agent shall direct, assignments of any and
all rights or claims that relate to the construction of improvements on the
Property and which Mortgagor may have against any Person supplying or who has
supplied labor, materials or services in connection with construction of the
Property.

      22. Event of Default; Acceleration; Remedies. Each of the following shall
constitute an Event of Default hereunder, (a) if any Event of Default, as
defined in the Credit Agreement, occurs under the Credit Agreement, or (b) if
Mortgagor defaults in the performance or observance of any of the covenants or
agreements of Mortgagor contained in this Agreement. In


                                       9
<PAGE>   10
addition to any other right or remedy that Administrative Agent may now or
hereafter have at law or in equity, upon the occurrence of an Event of Default,
Administrative Agent shall have the right and power (i) to foreclose upon this
Agreement and the lien hereof; (ii) to sell the Property according to law at one
or more sales as an entirety or in parcels, if applicable, and at such time and
place upon such terms and conditions and after such notices thereof as may be
required by law; (iii) to enter upon and take possession of the Property; and
(iv) apply for the appointment of a receiver, trustee, liquidator or conservator
of the Property, without notice and without regard for the adequacy of the
security for the Obligations and without regard for the solvency of Mortgagor or
Borrower or any other Person liable for the payment of the Obligations, or any
thereof. If all sums secured by this Agreement become immediately due and
payable in accordance with this Section, Administrative Agent, at Administrative
Agent's option, may foreclose this Agreement by judicial proceeding and may
invoke any other remedies permitted by applicable law or as provided herein.
Administrative Agent shall be entitled to collect all costs and expenses
incurred in pursuing such remedies, including, but not limited to, costs of
documentary evidence abstracts, title reports and attorneys' fees.

      23. Indemnification. Mortgagor shall protect, indemnify and save harmless
Administrative Agent and the Lenders from and against all liabilities and
expenses (including, without limitation, reasonable attorneys' fees and
expenses, including those incurred in connection with appellate, bankruptcy and
post-judgment proceedings) imposed upon or incurred by or asserted against
Administrative Agent or any Lender, and not caused by the gross negligence or
intentional misconduct of Administrative Agent or such Lender, by reason of (a)
ownership of this Agreement, the Property or any interest therein or receipt of
any rents, (b) any accident, injury to or death of persons or loss of or damage
to property occurring in, on or about the Property or any part thereof or on the
adjoining sidewalks, curbs, adjacent property or adjacent parking areas or
streets, (c) any use, non-use or condition in, on or about the Property, or any
part thereof, or on the adjoining sidewalks, curbs, adjacent property, parking
areas or streets, (d) any failure on the part of Mortgagor to perform or comply
with any of the terms of this Agreement, or (e) the performance of any labor or
services or the furnishing of any materials or other property in respect of the
Property or any part thereof. The obligations of Mortgagor under this Section 23
shall survive any termination or satisfaction of this Agreement.

      24. Hazardous Waste Covenants and Indemnification.

          (a) Mortgagor covenants and warrants that Mortgagor's use of the
Property shall at all times comply with and conform, in all material respects,
to all laws, statutes, ordinances, rules and regulations of any governmental,
quasi-governmental or regulatory authority now or hereafter in effect ("Laws")
which relate to the transportation, storage, placement, handling, treatment,
discharge, release, generation, production or disposal (collectively
"Treatment") of any waste, waste products, petroleum or petroleum based
products, radioactive materials, poly-chlorinated biphenyls, asbestos, hazardous
materials or substances of any kind, pollutants, contaminants and any substance
which is regulated by any law, statute, ordinance, rule or regulation
(collectively "Waste"). Mortgagor further covenants that it shall not engage in
or permit any Person to engage in any Treatment of any Waste on or that affects
the Property except for activities which comply with all Laws in all material
respects.


                                       10
<PAGE>   11
          (b) Except as specifically disclosed to Administrative Agent in
writing in any schedule to the Credit Agreement, Mortgagor has no actual
knowledge that the Property is the subject of any Notice, as hereinafter
defined, from any governmental authority or Person.

          (c) Promptly upon receipt of any Notice from any Person, Mortgagor
shall deliver to Administrative Agent a true, correct and complete copy of any
written Notice or a true, correct and complete report of any non-written Notice.
Additionally, Mortgagor shall notify Administrative Agent immediately after
having knowledge or Notice of any Waste in or affecting the Property. "Notice"
shall mean any note, notice, information, or report of any of the following:

            (i) any suit, proceeding, investigation, order, consent order,
      injunction, writ, award or action related to or affecting or indicating
      the Treatment of any Waste in or affecting the Property;

            (ii) any spill, contamination, discharge, leakage, release,
      threatened release, or escape of any Waste in or affecting the Property,
      whether sudden or gradual, accidental or anticipated, or of any other
      nature ("Spill");

            (iii) any dispute relating to Mortgagor's or any other Person's
      Treatment of any Waste or any Spill in or affecting the Property;

            (iv) any claims by or against any insurer related to or arising out
      of any Waste or Spill in or affecting the Property;

            (v) any recommendations or requirements of any governmental or
      regulatory authority, insurer or board of underwriters relating to any
      Treatment of Waste or a Spill in or affecting the Property;

            (vi) any legal requirement or deficiency related to the Treatment of
      Waste or any Spill in or affecting the Property; or

            (vii) any tenant, licensee, concessionaire, manager, or other Person
      occupying or using the Property or any part thereof which has engaged in
      or engages in the Treatment of any Waste in or affecting the Property in
      violation of applicable Laws.

          (d) In the event that (i) Mortgagor has caused, suffered or
permitted, directly or indirectly, any Spill in or affecting the Property during
the term of this Agreement, or (ii) any Spill of any Waste has occurred on the
Property during the term of this Agreement, then Mortgagor shall immediately
take all of the following actions:

            (A) notify Administrative Agent, as provided herein;

            (B) take all steps necessary or appropriate to clean up such Spill
      and any contamination related to the Spill, all in accordance with the
      requirements, rules or regulations of any local, state or federal
      governmental or regulatory authority or agency having jurisdiction over
      the Spill; provided that Mortgagor may contest any such requirement, rule
      or regulation by appropriate proceedings diligently and in good faith, so


                                       11
<PAGE>   12
      long as (1) Mortgagor provides Administrative Agent, at Mortgagor's cost,
      such sureties, performance bonds and other assurances as Administrative
      Agent may from time to time request in respect of such Spill and
      contamination and the cleanup thereof, (2) any governmental or other
      action against Mortgagor and the Property is effectively stayed during
      Mortgagor's efforts so to contest, and (3) in Administrative Agent's
      determination, a delay in such clean-up will not result in or increase any
      loss or liability to Administrative Agent;

            (C) restore the Property, provided that such restoration shall be no
      less than, but need not be more than, what is otherwise required by
      applicable federal, state or local law or authorities;

            (D) allow any local, state or federal governmental or regulatory
      authority or agency having jurisdiction thereof to monitor and inspect all
      cleanup and restoration related to such Spill; and

            (E) at the written request of Administrative Agent, post a bond or
      obtain a letter of credit for the benefit of Administrative Agent (drawn
      upon a company or bank satisfactory to Administrative Agent) or deposit an
      amount of money in an escrow account under Administrative Agent's name
      upon which bond, letter of credit or escrow Mortgagor may draw, and which
      bond, letter of credit or escrow shall be in an amount sufficient to meet
      all of Mortgagor's obligations under this Section 24; and Administrative
      Agent shall have the unfettered right to draw against the bond, letter of
      credit or escrow in its discretion in the event that Mortgagor is unable
      or unwilling to meet its obligation under this Section 24 or, if Mortgagor
      fails to post a bond or obtain a letter of credit or deposit such cash as
      is required herein, then Administrative Agent, at Mortgagor's cost and
      expense, may, but shall have no obligation to do so for the benefit of
      Mortgagor and do those things that Mortgagor is required to do under
      clauses (B), (C) and (D) of this subsection (d).

          (e) Mortgagor hereby agrees that it shall indemnify, defend, save
and hold harmless Administrative Agent and the Lenders and their respective
officers, directors employees, agents, successors, assigns and affiliates
(collectively, "Indemnified Parties") against and from, and to reimburse the
Indemnified Parties with respect to, any and all damages, claims, liabilities,
losses, costs and expenses (including, without limitation, reasonable
attorneys', engineers' and consultants' fees and expenses, court costs,
administrative costs, costs of appeals and all clean up, administrative, fines,
penalties and enforcement costs of applicable governmental agencies) that are
incurred by or asserted against the Indemnified Parties by reason or arising out
of: (i) the breach of any representation, warranty or undertaking of Mortgagor
under this Section 24, or (ii) the Treatment of any Waste by Mortgagor or any
tenant, licensee, concessionaire, manager, or other Person occupying or using
the Property, in or affecting the Property, or (iii) any Spill governed by the
terms of this Section 24.

          (f) The obligations of Mortgagor under this Section 24 shall survive
any termination or satisfaction of this Agreement.


                                       12
<PAGE>   13
      25. Priority of Mortgage Lien. Administrative Agent, at Administrative
Agent's option, is authorized and empowered to do all things provided to be done
by a mortgagee under Section 1311.14 of the Revised Code of Ohio, as in effect
from time to time, for the protection of Administrative Agent's interests in the
Property.

      26. Adjustments to Maximum Liability. Anything in this Agreement to the
contrary notwithstanding, in no event shall the amount of the Obligations
secured by this Agreement exceed the maximum amount that (after giving effect to
the incurring of the obligations hereunder and to any rights to contribution of
Mortgagor from other affiliates of Borrower) would not render the rights to
payment of Administrative Agent and the Lenders hereunder void, voidable or
avoidable under any applicable fraudulent transfer law.

                  [Remainder of page intentionally left blank]


                                       13
<PAGE>   14
      27. JURY TRIAL WAIVER. MORTGAGOR, ADMINISTRATIVE AGENT AND THE LENDERS
WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG THEM ARISING OUT OF, IN
CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT
OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO.

      IN WITNESS WHEREOF, Mortgagor has executed this Agreement as of the day
and year first set forth above.

Signed and acknowledged                      MORTGAGOR:
in the presence of:
                                             [                        ]

                                             By:
-----------------------------------          -----------------------------------
Print                                        Name:
-----------------------------------          -----------------------------------
                                             Title:
                                             -----------------------------------
-----------------------------------
Print
-----------------------------------


                                       14
<PAGE>   15
STATE OF OHIO         )
                      )  SS:
COUNTY OF CUYAHOGA    )

      On this 10th day of August, 2001, before me, a Notary Public in and for
said County and State, personally appeared                                   ,
the                  of [              ], an Ohio corporation, who acknowledged
the signing of the foregoing instrument on behalf of said corporation to be
her/his free act and deed and the free act and deed of said corporation for the
uses and purposes set forth therein.

      IN WITNESS WHEREOF, I have hereunto set my hand and official seal at
Cleveland, Ohio.

                                             -----------------------------------
                                             Notary Public

This instrument was prepared by:
John E. Mazey, Esq.
Jones, Day, Reavis & Pogue
901 Lakeside Avenue
Cleveland, Ohio 44114
216/586-3939


                                       15
<PAGE>   16
                                    EXHIBIT A

                                LEGAL DESCRIPTION



                                       16
<PAGE>   17
                                    EXHIBIT B

                             PERMITTED ENCUMBRANCES



                                       17

</TEXT>
</DOCUMENT>
