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D9201 - W82
IN THE FRANKLIN COUNTY
COURT OF COMMON PLEAS
)
) CASE NO. 09CV008491
IN RE:
DISSOLUTION OF )
) JUDGE JOHN P. BESSEY
)
CORD CAMERA CENTERS. INC
)
OBJECTION OF NIKON INC. TO THE RECEIVER’S MOTION FOR APPROVAL
OF SALE PROCEDURES FOR THE SALE OF RECEIVERSHIP
ASSETS FREE AND CLEAR OF LIENS
Nikon Inc. (“Nikon”), a creditor of Cord Camera Centers, Inc., hereby objects to
Recerver’s Motion for Approval of Sale Procedures for the Sale of Receivership Assets Free and
Clear of Liens (the “Sale Motion”). A Memorandum Contra to the Sale Motion 1s attached
hereto and incorporated herein as Exhibit A.
WHEREFORE, Nikon respectfully requests that Recciver’s Sale Motion be
denied.
Respectfully submitted,
U}MER & BARNE wb
Christine Watchorn (0075919)
7 SB .
88 East Broad Street, Suite 1600 ne
Columbus, Ohio 43215-3581 God aS
Telephone. (614) 229-0000 x = FF
Facsimile: (614) 229-0001 Go @& FL
E-Mail: cwatchom@ulmer.com oN S22
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Richard G. Hardy (0021920)
Todd A. Atkinson (0077374)
1660 West 2nd Street, Suite 1100
Cleveland, Ohio 44113-1448
Telephone: (216) 583-7000
Facsimile (216) 583-7001
E-Mail: rhardy@ulmer.com
tatkinson@ulmer com
Counsel for Nikon Inc.
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EXHBIIT AD9201 - Wwe4
MEMORANDUM CONTRA TO THE SALE MOTION
Kenneth Leachman, the receiver in this matter (the “Receiver™), has sought
extraordinary relief from this Court—authorization to operate the business of Cord Camera
Centers, Inc. (“Cord”) and to conduct an auction and sale of Cord free and clear of all liens,
claims and encumbrances of Cord’s creditors In connection with that sale, the Recciver makes
another extraordinary requcst—that Uns Court approve sales procedures which actually precludes
creditors from any opportunity to object to the proposed sale itself.
These procedures would be objectionable under ordinary circumstances.
However, the procedures proposed herein appear designed to assist Steven Cordlc (“Cordle”),
Cord’s 100% equity owner, in reacquiring his old company to the detriment of Cord’s creditors
Under the proposed procedures, Cordle will be allowed to credit bid the alleged
value of licns of Colfax Financial, LLC (“Colfax”), another entity wholly owned by Cordle,
which were acquired in an undisclosed transaction shortly before this voluntary dissolution was
commenced with this Court. No proof of the nature, validity, priority or amount of Colfax’s
licns has been presented to this Court. As demonstrated below, the sale procedures should be
denied or modified for the following reasons, among others:
e The Receiver’s attempt to cul off creditors’ rights to object to uny
resulting sale 1s unwarranted;
e A sale to a Cord insider should not be made free and clear of liens, claims
and encumbrances;
e The purported licns of Colfax have net been adequatcly investigated and
may be subordinated to the rights of Cord’s creditors;
e The breakup fee to Cord is unwarranted and may chill bidding; and
e Potential fraudulent transfer, successor liability and alter ego and other
claims of Cord’s creditors should not be impaired.D9201 - W85
L BACKGROUND
A. Cord, Cordle, and Colfax and the Arrangements to Reacquire Cord's Assets
Through a Credit Bid in the Receivership
Cord is an Ohio corporation that maintains its principal offices m Franklin
County, Ohio. Cord is wholly owned by Cordle, who is the 100% shareholder of Cord. Cordle
is also the sole member of Colfax.
On September 5, 2008, Huntington National Bank (“Huntington”) and Colfax
entered into a loan agreement (the “Loan Agreement”) pursuant to which Huntington agreed to
loan Colfax $4,000,000, as evidenced by a certain commercial term loan note (the “Note”) (See
Open-Ended Mortgage, Assignment of Rents and Security Agreement (First Modification),
attached hereto as Exhibit B) Also on September 5, 2008, Cord unconditionally guaranteed
Colfax’s obligations under the Note. /d. It appears that the proceeds of this loan were used to
acquire the rights that Huntington had in a certain Loan and Security Agreement dated
September 9, 2004 and certain related agreements pursuant to which Huntington had loaned
money to Cord or other Cordlc entities (the “Secured Debt”).
On September 12, 2008, days after Colfax acquired the Secured Debt, Cord
entered into an agreement with Nikon pursuant to which Cord promised to pay Nikon for certain
products and services. Cord defaulted in its obligations under this agreement and currently 1s
indebted to Nikon for approximatcly $1,551,201.35. Again, Cordle 1s the owner of both Cord
and Colfax and so he was fully aware of the ability of Cord to perform its obligations to Nikon
when the Nikon agreement was entered into.
On June 5, 2009, Cord voluntarily sought dissolution and the appointment of a
receiver from this Court. On June 8, 2009, the Court entered an order (“Appointment Order”),
appointing the Receiver.
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The Receiver has continued to operate the business of Cord, presumably with
input from Cordle. He has paid certain so-called “critical vendors” pre-receivership debts
without making similar payments to other Cord creditors. During this time, Cordle, through
Colfax arranged with the Recciver to purchase Cord through a credit bid (“Credit Bid”) of its
alleged Secured Debt.
On July 17, 2009, the Receiver filed its Motion for Approval of Sale Procedure
for the Sale of Reccivership Assets Free and Clear of Liens (the “Sale Motion”), requesting,
among other things, approval of certain solicitation and bidding procedures for the sale of Cord’s
assets. The Receiver estimates the sale of Cord could yield $4 million but, of course, none of
that consideration will be available to creditors other than Colfax if Colfax 1s permitted to credit
bid under the procedures proposed by the Receiver.
On July 31, 2009, Leaf Funding, Inc. (“Leaf”) filed its Opposition to Receiver’s
Motion for Approval of Sale Procedures for the Sale of Receivership Assets Free and Clear of
Liens (the “Leaf Objection”).
On August 10, 2009, the Receiver informed Nikon’s counsel that a hearing to
consider the Sale Motion has purportedly been set for August 13, 2009 at 1:30 p.m., although a
copy of this Court's Order establishing the hearing has not been provided to creditors
Il. LAW AND ARGUMENT
By the Sale Motion, the Receiver requests that this Court approve sales
procedures for soliciting bids and holding an auction for the sale. In doing so, the Receiver also
asks this Court to bar parties from objecting to whatever sale results from the approved salcs
procedures.
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Nikon objects to the Sale Motion on the grounds that (a) the Receiver’s atlempt to
cut off Nikon’s nights to object to the sale is improper and premature; and (b) the procedures (1)
impermissibly allow Cord’s asscts to be sold free and clear of all liens, claims, and
encumbrances, (ii) permit Colfax to credit bid based on alleged liens that may not have becn
adequately investigated or documented; (1ii) unjustifiably give Colfax a break up fee, and (iv)
ignore the possibility that Colfax may have benefitted from a fraudulent transfer from Cord.
Accordingly, for these reasons, as more fully sct forth below, the Sale Motion should be denied.
A. THE RECEIVER'S ATTEMPT TO CUT OFF PARTIES’ RIGHTS TO
OBJECT TO ANY RESULTING SALE IS UNWARRANTED
By the Sale Motion, the Receiver presents a request that—in form—asks this
Court to approve sale procedures that it contends would facilitate the solicitation and auction of
the sale of Cord. In substance, however, the Receiver docs much more, making the
extraordinary and premature attempt to push through the sale and preclude parties from objecting
to such sale before anyone is aware of the proposed terms of the purchase In doing so, the
Receiver fails to cite to any legal authonty, ignoring, among other things, the Rules of Practice
of the Court of Common Pleas (the “Local Rules”),! Ohio law. and principles of equity and
fairness.
In particular, the Receiver proposes to file a motion at the conclusion of the bid
and auction process to confirm the sale (the “Confirmation of Sale Motion”), seeking to limit this
Court's ability to consider objections to the underlying sale resulting from the bid and auction.
Indeed, the Receiver makes the extraordinary demand that "[the only objections to the
Confirmation of Sale Motion that the Court will consider will be objections that the Bid and
See, e y., Local Rule 21 01 (“All motions shall be accompanies by a brief stating the grounds and citing the
authoraues relied upon ") (emphasis added)
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Auction Procedures were not followed and objections to the Recciver’s determination of the
Successful Bidder.” (Mot. 4 50; see also Mot. | 34). Here, the Receiver's request should be
denied because it unjustifiably and prematurely prevents parties, including Nikon, from objecting
to the sale, a sale whose terms are completely unknown at this time.
Furthermore, the Receiver proposes that, if this Court overrules any objection
filed to the Sale Motion, then “such ruling shall be considered the ‘law of the case’ and res
Judicata on the parties in interest.” (Mot 450) The Receiver’s requests are not supported by
law. As set forth in the Leaf Objection, the “law of the case” doctrine requires that “the decision
of the reviewing court in a case remains the law of that case on the legal questions involved for
all subsequent proceedings in the casc at both the trial and reviewing levels,” Hawley v Ritley,
35 Ohio St. 3d 157, 160 (1988) (emphasis added) (stating that the law of the case doctrine “will
not be applied so as to achieve unjust results”). It does not, and should not be used, by a lower
court to precmptively thwart a parties’ right to object to motions filed or actions taken in this
case Similarly, the Receiver’s request that this Court’s ruling on the Sale Motion should have
res judicata effect on partics in interest is also misplaced. As a threshold matter, any application
of the doctrine of res judicata should be governed by Ohio law and, therefore, the Receiver’s
request for an affirmative determination or ruling by this Court 1s both unnecessary and
inappropriate. The doctrine of res yudicuta cncompasses concepts of claim and issuc preclusion,
concepts that may prohibit the same parties from relitigating the same issue or claim in defined
circumstances, O’Nest: v. DeBartolo Realty Corp., 113 Ohio St. 3d 59, 61 (2007). The doctrme
of res judicata does not, however, apply to bar all parties in interest from litigating an issue, as
asserted by the the Receiver. Id.
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Accordingly, the Receiver’s request to cut off Nikon's right to object to the sale,
prior to knowing the actual terms of the sale, should be demicd.
B. THE SALE PROCEDURES SHOULD BE DENIED
The Receiver, less than six (6) weeks after his appointment, and without citing
any Icgal authority, asks this Court to approve the sale of all of Cord’s assets. This Court should
not approve such a furiously paced sale that seeks to allow Cordle, by virtuc of his ownership of
Colfax, to take over Cord and escape any liability to Cord’s creditors. In particular, the Sale
Motion should be denied to the extent that it (i) extinguishes Cords’s liens, claims, and
encumbrances; (1) 1s based on inadequate lien investigations; (iii) provides Colfax with an
unnecessary and unjustified break up fee; and (iv) rewards Colfax for receiving a fraudulent
transfer Accordingly, as demonstrated below, the Sale Motion should be denied and the sale
should not go forward.
i. The Sale Should Not Be Free And Clear of Liens, Claims, and
Encumbrances
The Receiver requests that the sale “shall be free and clear of any and all liens.
claims, encumbrances or interests of any kind arising either before or after the appointment of
the Receiver.” As sct forth in the Leaf Objection, under Ohio law, a receiver is without authority
to sell assets free and clear of Liens unless he has the prior approval and consent of the
lienholders. (See Leaf Oby 4 10). Here, Leaf, among other lienholders, has not consented to the
frec and clear sale of Cord’s assets. Therefore, the Sale Motion should be denied.
More importantly, under Ohio law, a receiver 1s not permitted to sell, and this
Court should not permit the sale of, assets free and clear of claims, where, among other things,
the purchaser 1s a mere continuation of the seller or the transaction is a fraudulent attempt to
escape liability. See, eg, Welco Indus., Inc. v. Apphed Cos, 67 Ohio St. 3d 344, 350 (1993)
6
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{stating that, under well recognized exceptions, a successor corporation may be held liable when
. .. the buyer corporation is merely a continuation of the seller corporation); Mandulaywala v.
Omnitech Elecs, Inc , 2006 Ohio 2872, at *26 (Omo Ct. App 2006) (reversing lower court and
concluding, in the context of a receivership sale that, “under certain circumstances, a successor
corporation may be held liable for the contractual liabilities of 11s predecessor”); (Buckholf v
First Fed Sav. Bank, 102 Ohio App. 3d 400, 402 (Ohio Ct. App. 2005) (discussing, in the
context of a reccivership assct sale, when a purchaser of a corporation's assets may be hable for
the liability of the scller corporation); see also Flaugher v.Cone Automatic Machine Co., 30
Ohio St. 3d 60, 62 (1987) (applying the standard, in the context of the sale of a corporation’s
assets, in which a purchaser corporation may be liable for the seller corporation’s liabilities).
In Welco, the Ohio Supreme Court considered the circumstances in which a
purchaser corporation would be liable for the contractual liabilities of its predecessor
corporation. Importantly, in Welco, the Ohio Supreme Court noted that successor liability would
be present where “one corporation sells its assets to another corporation with the same people
owning both corporations Thus, the acquiring corporation is just a new hat for, or
reincarnation of, the acquired corporation.” Welco, 67 Ohio St. at 350 (emphasis added,
quotations and citations omitted); see also Mandalaywala , 2006 Ohio 2872, at *34. Here, by the
Sale Motion, the Receiver is attempting to sell Cord to Colfax, entities which are both wholly
owned by Cordle. Accordingly, because the sale to Colfax will merely result in a new
Teincamation of Cord, successor liability cxists that would prevent the extinguishment of claims
against Cord, including claims held by Nikon. Therefore, the Sale Motion should be denied.
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ii. Colfax’s Liens Should Be Adequately Investigated
In the Sale Motion, the Receiver contends that Colfax “holds the first and best
lien as to substantially all of the receivership assets” of Cord. (Mot. 4 10). In support, the
Receiver attaches UCC financing statements to substantiate the validity Colfax’s liens, indicaung
that Colfax received an assignment of such liens from Huntington. Jd, Interestingly, Colfax’s
assignment of the liens was obtained less than one (1) month before Cord sought this
receivership. Furthermore, the Receiver reports that the assignment was in exchange for “good
and valuable” consideration, but has failed to disclose the amount of such consideration. In fact,
the Receiver has failed to supply any detail with respect to the creation and perfection of such
liens At a minimum, the Receiver must demonstrate to this Court that Colfax has the first and
best lien on the Cord assets and that the licn was acquired for “good and reasonable
consideration.” In the alternative, the sale should be delayed until Nikon and other partics have
had sufficient opportunity to examine and investigate the validity of Colfax's liens.
tii. The Breakup Fee Is Unwarranted
The Receiver proposes to award a $25,000 breakup fee to the stalking horse
bidder. A stalking horse bidder typically may recover a breakup fee when, among other things,
the stalking horse has incurred expenses in connection with due diligence needed for evaluating a
target company. Here, Colfax should not reap the benefit of any break up fee since Colfax is
wholly owned by the same person who owns Cord. Colfax cannot identify any due diligence
expenses incurred in connection with this transaction.
iv. Fraudulent Transfer Claims Should Not Be Impaired
Colfax, in addition to being the anticipated stalking horse bidder and being wholly
owned by Cordle, may have been the beneficiary of a fraudulent transfer from Cord in
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connection with the Loan Agreement. Jn particular, under the Loan Agreement, in which
Huntington loaned Colfax $4,000,000, Cord entered into an unconditional guarantce of payment
and performance (the “Guarantee"), guaranteeing the obligations of Colfax under the Loan
Agreement. The Receiver does not identify what, if any, consideration was given to Cord in
return for the Guarantee or in exchange for the security interest granted in its assets. This Court
should not permit a party which has benefited from a fraudulent conveyance to credit bid on the
assets of the very party which fraudulently conveyed to it a security interest in its asscts.
Under Ohio Revised Code (O.R.C.") section 1336, a creditor has a nght to bring
suit to recover fraudulently transferred funds See O.R.C § 133607; Aegis Servs. v. Trans
Healthcare, Inc., 2005 U.S. Dist. LEXIS 38475, at *9-*10 (S.D. Ohio Dec. 20, 2005) (denying
receiver’s motion for judgment on the pleadings, and holding that the receiver is not the only
party with standing to maintain a fraudulent transfer action), Nikon has the independent right to
pursue recovery with respect to fraudulent transfers and this court should not approve any sales
procedures which purport to extinguish those rights. In any event, Colfax’s proposed Credit Bid
should be expressly limited to the value Colfax can demonstrate Cord actually received in
exchange for the security interest granted in Cord’s assets.
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Il. CONCLUSION
For the reasons set forth above, Nikon respectfully requests that the Sale Motion
be denicd.
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Respectfully submitted,
tine Watchorn (0075919)
88 East Broad Street, Suite 1600
Columbus, Ohio 43215-3581
Telephone: (614) 229-0000
Facsimile: (614) 229-0001
E-Mail: cwatchorn@ulmer.com
and
Richard G. Hardy (0021920)
Todd A. Atkinson (0077374)
Skylight Office Tower
1660 West Second Street, Suite 1100
Cleveland, Ohio 44113-1448
Telephone: (216) 583-7000
Facsimile: (216) 583-7001
E-Mail: rhardy@uimer.com
tatkinson@ulmer.com
Counsel for Nikon IncD9201 - w94
CERTIFICATE OF SERVICE
A copy of the foregoing Objection of Nikon Inc. to the Recetver’s Motion for
Approval of Sate Procedures for the Sale of Receivership Assets Free and Cicar of Liens has
been sent to the parties shown on the attached Service List, via regular E-Mail or regular U.S.
Mail, postage prepaid, this 12th day of August, 2009.
David G. Simonette, Esq. Myron N. Terlecky, Esq.
Simonette Law Firm, Inc. Aaron C. Firstenberger, Esq.
123 South High Street Strip, Hoppers, Leithart
Dublin, Ohio 43017 575 South Third Street
dsimoi imonettelawfirm.com Columbus, Ohio 43215
Attorney for Plainuff mnt@columbuslawyer net
columbusla' “net
Attorneys for the Receiver
Keith M. Karr, Esq. Randy T. Slovin
David W. Culley, Esq. Slovin & Associates Co., LP
Karr & Sherman Co., LPA 9435 Waterstone Blvd., Suite 270
2 Miranova Place, Suite 410 Cincinnati, Ohio 45249
Columbus, Ohio 43215 sclpa@sclpa.com
kkarr@karrsherman.com Attorney for Canon Financial Services
deulley@karrsherman.com
Attorney for Microman, Inc.
J. Matthew Fisher
Allen, Kuehnle & Stovall
17 South High Streeet, Suite 1220
Columbus, Ohro 43215
fisher@aksnlaw.com
Attorney for Colfax Financial
hristine Watchorn (0075919)
Ulmer & Berne LLP
Counsel for Nikon Inc.
11
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EXHIBIT BD9201 - W96
ZENO
9099052800581 138136
waar 3 nantes
varus tha le Recor bor
OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND
SECURITY AGREEMENT (FIRST MODIFICATION)
‘THIS OPEN-END MORTGAGE, ASSIGNMENT OF RENTS ANI) SECURIIY
AGREEMENT (FIRS | MODIFICATION) (“Modification”), ws dated as of the _12 da, of Apal,
2009 C"Ftfcctove Pata") by and amung CCC REAL ESTATE HOLDINGS LLC, at Ohro Ieuted
Aunbility company ("CCC"), STLVEN L. CORDLE, a merned uncdhvidual resident uf de: Suite of
Ohio ("Cordis"), 3981-3983 MAN STREGT, LLC, an Ohio limited liability company ("Man
Steet"), CORD CAMERA CENTERS, INC, an Obo corporation ("Cord"), 6032 HAYDEN
RUN ROAD, LLC, en Oboe lumted lability conipany (“Hayden Run” and, collecuvely wih
CCC, Cordle, Mam Street ond Cord, "Qnginal Moricagum"). HAYDEN RUN ROAI
INVES™MEML CO. LLC. a1 Olu limited hailty company ("Hayden Invesment") and 745
HARRISON DRIVE, LLC, an Ohww lianted hobily company ("Harnson™ and, together with
Hayden Invesament, the "New Mongapor", the Onyinal Mortgugom sud the hew Mongagors
ure, collectively, the “Merygzors"), the Morigagors all huving an address of c/o Cord Cumera
Conon, Inc. 2030 Dividend Dnve, Columbus, Ohio 43228, end THIS HUNTINGTON
NATIONAL, BANK, a nations! Sonking associelion, having on olftce ut 4] South "igh Si
‘Columbus, Otuw 43215 ("Hupungton").
WHERCAS, Hunungioa sad Colfax Financial, LLC, an Ohio hinted lability company
(Romower") arc porues to a cea Loan Agreement datcd September 5, 2008 (the "Luan
Astament*) pursusnt to which Hurnngion ngreed to loen w Borrower an amaunt not to excced
Four Vullion Dollers ($4,000,000 00) {the "oan":
WHEREAS, the Loon as evulenced by a cenain Commerce Term Loan Note dated
Sepiumber 5, 2008, by Borrower to Huntington (the "Nufe"),
WHERPAS, with ine exception of Cardle, who (in addition to Borrower) 1s dicctly
obhgated under the Note, each of the Original Morgagors pnrantced Borrower's ol gations under
the Nine pursemt to one or signe Unconiituna! Guarantess of Payment and Merfortence dated
Sepverver 5, 2008 (collectively, the “Guarantees” );
WHEREAS, the Nots, and Onginel Momgagors' Guarintees thercof, are secured by a
certain Open-End Mortgage, Assignment of Renistend Secunty Agreement dated Scptember 5,
2008, and reeondod at {nstrumert No_ 20K0809 100137276, Franklin County Recorder's Office, frum
Onginal Mongagors to Hunuingion which Mortgage created a lien upon the real property described
tn Exlitat A w the Mongage (as modified by thea ecstnin Vartial Releast. of Monyage recorded ut
Instrument No 200707 2L005C 598 _, Fronkhn County Recorder's Oilice, the “Morizage”);
WHEREAS, pursuant to thit ceruun Warrauty Deed of even duie herevath, Cord has
conveyed that certian real propery ideaufied as "Trect XI" on Exhibit A to the Murigage tc
fameon.
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WHERIAS, pursuant to thai corta.n Warranty Deed of even date herewith, Hayden Roo
has conveyed that certain ral property dentfied as “Teact XI" an Exhibit «\ tu the Mongsge wu
Hayden Jnvestmeni,
WHEREAS, Munnngion ano the Mongagors wish to modify the Murgage tu reflect the
‘Trunsi.r of the aforemennoned properties to the New Mortgagors, ond
WIILREAS, a] capuzhzed terms used herein and not specifically defined shall have the
meaning set forth in te Murtgage:
NOW, THEREFORI: m consideration of the foregoing pronuscs and the covenanis
contanud kerr and other valuable cunsiderntion, the partics hereto agroc as follows
| MODIFICATION. OF MORTGAGE’ NEW MORIGAGORS The Mongage 1s
hereby mouitied io provide that New Martgegors slull hereinafter be partics to the Mortgage, 25
af they had eaceated the Mortgage originally. New'Mortgagors do hereby grant, bargait, sel! aad
‘convey that poston of che Mortguged Property owned by New Mortgagors to the sume effect us if!
they hed bren ongmu! parties to the Murtgage, The defimtan of “Mongagor” in the Morigage shall
now include not caly the Onginal Mortgayors but also the New Mongagors.
2 RATIFICATION 01 MORIGAGE AND OUIIER LOAN DOCUMENTS ‘the
Morguge, us modified, 1s in oll respects ratzfted and confirmed by the partes hervto and the
‘Mortgage, as moditied, and chis Modhficuon shal! be read, taken ond construed @s ons und che
saniv instrument = Mongugors farther uchnowledge and agree that all securdy ayreemens,
financing statements, docunrenis, instruments, certificates, affldavis and other security
documents taken as collateral for the Note are intended to and shall continue to secure the Loan
‘eral shall rempin in full force and effect, Borrower hereby acknawleuges und agrees that it bus uo
defenses to of nghis of setoff agsinst Huntington under the Note. Borrower hereby further
acknowledges thar, as of che Effective Datc, Huntington: has performed all of Hunungion's
obligations under the Note, the Loan Agresment and any other documents relating to the Laem,
3. RATIEIGALION OF GUARANIRES, The Original Mortgagors who ate parties
ta Gusrantess peknowledge and agree to the terms of the foregoing Modification and hereby
raufy and cunfina each und every obligation under the respectuve Guarantees, and agree to he
ound by chew terms and conditions, Guarantors acknowledge and agsce that Guarantors, as of
the date hereof, have io defenses to or nights of setoff against Guarantors’ abligations and al!
{iobuluy to Huaiingion under the Guarantees, respectively
4 RECORDING, ENDORSEMENT TQ_ TITLE INSURANCE _P
Mortgagars shall file an executed ongiral of ths Modificahon wath the Recorder of Franklin
County, Ohio, and shall deliver to Huntingion. within thirty (30) days after the Fifecnve Date,
stch recorded Modficsuon and shall cause tithe uisurer to issue an endorsenunt satisfactory ta
‘Hurtmnon.
EI W Thus Modhfication shall be interpreted and construed in
sccortouce vath and poverned by che laws of the State of OhioD9201 - W98
6 = COUNTERPARTS. This Modification may be executed in counterparts, esch at
whuth shall be deemed en onginal, but all of which mken together shall constitute but onc acd
the same instrament.
{REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
wetherD9201 - W99
IN WITNESS WHEREOE, the undersigned have caused this Modification to be executed
dy thur duly euthon..ed representatives as of the day and year first above written.
MORTGAGORS
HAYDEN RUN ROAD INVESTMENT CO , LLC,
un Ohio limted ability company
By CORD CAMERA CENTERS, INC,
.s corporation, an
‘Steven L Cordle, Presilent me
SATE OF ORO
COUNTY OF FRANKLIN SS
The foroyung mnsiument was exrewed md acknowledged before me this J day of
Apri, 2009, by Steven L. Cordle, the President of Cord Camera Centcis, Inc. on Ohiv
corporation, the sole member of Hayden Run Road investment Co.. LLC, an Ohio Irmted lnnbility:
company, on behalf of such company.
Commission
Expurauom __ M*sIAL
X1
743 HARRISON DRIVER, LLC,
an Ohio limited lubility company
By CORDCAMERA CENTERS, INC,
an Ohi corporauon, .
1, Shen AGL fetenlod
Steven L. Conde, President
STALE OF UHIO
COUNTY OF FRANKLIN: SS
She foregcing insirement was executed ang acknowledged before me dus Js” day af
April, 2009, by Steven L. Cordle, the President of Cord Camera Centers, inv., an Ohio
corporation, the sole member of 745 bisman Drive, LI C, a0 Ghia limited liabibty vorspan, us
fs .
behalf of such conupany, ib bL _
Nocay Pubhe ~~
Comrussion
Expirskon _ a?D9g201
It
X2
CUC REAL ESTATE HOLDINGS, LLC,
us Ohio hanited lrabilty:
by
STATE 0} O10
COUNTY OF FRANKLIN SS
a
The foregomg mnstrument was exccuted and acknowledged before meus 1S aay of
Apnl, 2009. by Steven L. Conile, the Managiug Member uf CCC Real Estate Holdings, LLC, an
Otro him ted habiluy company, un behalf of the company
" fuoke
Notary PublicD9g201 -
AMAL
X3
2,
SVEN 1. DLE, Individually
‘STATE. OF OHIO
COUNTY OF FRANKLIN SS.
The foregoing tnstr.snemt was exccuted and mhoowledged bertwe mic tms5th day of
Sepeanber, 2008, by Steven [. CoraleD9201 - X4
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STAT OF OHKD
COUNTY OF FRANKISN 5S
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Apal, 2009, by Julia Michelle Conte
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D9201 - W82 IN THE FRANKLIN COUNTY COURT OF COMMON PLEAS ) ) CASE NO. 09CV008491 IN RE: DISSOLUTION OF ) ) JUDGE JOHN P. BESSEY ) CORD CAMERA CENTERS. INC ) OBJECTION OF NIKON INC. TO THE RECEIVER’S MOTION FOR APPROVAL OF SALE PROCEDURES FOR THE SALE OF RECEIVERSHIP ASSETS FREE AND CLEAR OF LIENS Nikon Inc. (“Nikon”), a creditor of Cord Camera Centers, Inc., hereby objects to Recerver’s Motion for Approval of Sale Procedures for the Sale of Receivership Assets Free and Clear of Liens (the “Sale Motion”). A Memorandum Contra to the Sale Motion 1s attached hereto and incorporated herein as Exhibit A. WHEREFORE, Nikon respectfully requests that Recciver’s Sale Motion be denied. Respectfully submitted, U}MER & BARNE wb Christine Watchorn (0075919) 7 SB . 88 East Broad Street, Suite 1600 ne Columbus, Ohio 43215-3581 God aS Telephone. (614) 229-0000 x = FF Facsimile: (614) 229-0001 Go @& FL E-Mail: cwatchom@ulmer.com oN S22 a =. f= oftin and z= sae anos Qo o 8 88 < 9 “Ss Richard G. Hardy (0021920) Todd A. Atkinson (0077374) 1660 West 2nd Street, Suite 1100 Cleveland, Ohio 44113-1448 Telephone: (216) 583-7000 Facsimile (216) 583-7001 E-Mail: rhardy@ulmer.com tatkinson@ulmer com Counsel for Nikon Inc. ZLD9201 - W83 EXHBIIT AD9201 - Wwe4 MEMORANDUM CONTRA TO THE SALE MOTION Kenneth Leachman, the receiver in this matter (the “Receiver™), has sought extraordinary relief from this Court—authorization to operate the business of Cord Camera Centers, Inc. (“Cord”) and to conduct an auction and sale of Cord free and clear of all liens, claims and encumbrances of Cord’s creditors In connection with that sale, the Recciver makes another extraordinary requcst—that Uns Court approve sales procedures which actually precludes creditors from any opportunity to object to the proposed sale itself. These procedures would be objectionable under ordinary circumstances. However, the procedures proposed herein appear designed to assist Steven Cordlc (“Cordle”), Cord’s 100% equity owner, in reacquiring his old company to the detriment of Cord’s creditors Under the proposed procedures, Cordle will be allowed to credit bid the alleged value of licns of Colfax Financial, LLC (“Colfax”), another entity wholly owned by Cordle, which were acquired in an undisclosed transaction shortly before this voluntary dissolution was commenced with this Court. No proof of the nature, validity, priority or amount of Colfax’s licns has been presented to this Court. As demonstrated below, the sale procedures should be denied or modified for the following reasons, among others: e The Receiver’s attempt to cul off creditors’ rights to object to uny resulting sale 1s unwarranted; e A sale to a Cord insider should not be made free and clear of liens, claims and encumbrances; e The purported licns of Colfax have net been adequatcly investigated and may be subordinated to the rights of Cord’s creditors; e The breakup fee to Cord is unwarranted and may chill bidding; and e Potential fraudulent transfer, successor liability and alter ego and other claims of Cord’s creditors should not be impaired.D9201 - W85 L BACKGROUND A. Cord, Cordle, and Colfax and the Arrangements to Reacquire Cord's Assets Through a Credit Bid in the Receivership Cord is an Ohio corporation that maintains its principal offices m Franklin County, Ohio. Cord is wholly owned by Cordle, who is the 100% shareholder of Cord. Cordle is also the sole member of Colfax. On September 5, 2008, Huntington National Bank (“Huntington”) and Colfax entered into a loan agreement (the “Loan Agreement”) pursuant to which Huntington agreed to loan Colfax $4,000,000, as evidenced by a certain commercial term loan note (the “Note”) (See Open-Ended Mortgage, Assignment of Rents and Security Agreement (First Modification), attached hereto as Exhibit B) Also on September 5, 2008, Cord unconditionally guaranteed Colfax’s obligations under the Note. /d. It appears that the proceeds of this loan were used to acquire the rights that Huntington had in a certain Loan and Security Agreement dated September 9, 2004 and certain related agreements pursuant to which Huntington had loaned money to Cord or other Cordlc entities (the “Secured Debt”). On September 12, 2008, days after Colfax acquired the Secured Debt, Cord entered into an agreement with Nikon pursuant to which Cord promised to pay Nikon for certain products and services. Cord defaulted in its obligations under this agreement and currently 1s indebted to Nikon for approximatcly $1,551,201.35. Again, Cordle 1s the owner of both Cord and Colfax and so he was fully aware of the ability of Cord to perform its obligations to Nikon when the Nikon agreement was entered into. On June 5, 2009, Cord voluntarily sought dissolution and the appointment of a receiver from this Court. On June 8, 2009, the Court entered an order (“Appointment Order”), appointing the Receiver. 1789697 vwv6 Ulmer & Berne LLPD9201 - W86 The Receiver has continued to operate the business of Cord, presumably with input from Cordle. He has paid certain so-called “critical vendors” pre-receivership debts without making similar payments to other Cord creditors. During this time, Cordle, through Colfax arranged with the Recciver to purchase Cord through a credit bid (“Credit Bid”) of its alleged Secured Debt. On July 17, 2009, the Receiver filed its Motion for Approval of Sale Procedure for the Sale of Reccivership Assets Free and Clear of Liens (the “Sale Motion”), requesting, among other things, approval of certain solicitation and bidding procedures for the sale of Cord’s assets. The Receiver estimates the sale of Cord could yield $4 million but, of course, none of that consideration will be available to creditors other than Colfax if Colfax 1s permitted to credit bid under the procedures proposed by the Receiver. On July 31, 2009, Leaf Funding, Inc. (“Leaf”) filed its Opposition to Receiver’s Motion for Approval of Sale Procedures for the Sale of Receivership Assets Free and Clear of Liens (the “Leaf Objection”). On August 10, 2009, the Receiver informed Nikon’s counsel that a hearing to consider the Sale Motion has purportedly been set for August 13, 2009 at 1:30 p.m., although a copy of this Court's Order establishing the hearing has not been provided to creditors Il. LAW AND ARGUMENT By the Sale Motion, the Receiver requests that this Court approve sales procedures for soliciting bids and holding an auction for the sale. In doing so, the Receiver also asks this Court to bar parties from objecting to whatever sale results from the approved salcs procedures. 1789697vvv6 Ulmer & Berne LLPD9201 - W87 Nikon objects to the Sale Motion on the grounds that (a) the Receiver’s atlempt to cut off Nikon’s nights to object to the sale is improper and premature; and (b) the procedures (1) impermissibly allow Cord’s asscts to be sold free and clear of all liens, claims, and encumbrances, (ii) permit Colfax to credit bid based on alleged liens that may not have becn adequately investigated or documented; (1ii) unjustifiably give Colfax a break up fee, and (iv) ignore the possibility that Colfax may have benefitted from a fraudulent transfer from Cord. Accordingly, for these reasons, as more fully sct forth below, the Sale Motion should be denied. A. THE RECEIVER'S ATTEMPT TO CUT OFF PARTIES’ RIGHTS TO OBJECT TO ANY RESULTING SALE IS UNWARRANTED By the Sale Motion, the Receiver presents a request that—in form—asks this Court to approve sale procedures that it contends would facilitate the solicitation and auction of the sale of Cord. In substance, however, the Receiver docs much more, making the extraordinary and premature attempt to push through the sale and preclude parties from objecting to such sale before anyone is aware of the proposed terms of the purchase In doing so, the Receiver fails to cite to any legal authonty, ignoring, among other things, the Rules of Practice of the Court of Common Pleas (the “Local Rules”),! Ohio law. and principles of equity and fairness. In particular, the Receiver proposes to file a motion at the conclusion of the bid and auction process to confirm the sale (the “Confirmation of Sale Motion”), seeking to limit this Court's ability to consider objections to the underlying sale resulting from the bid and auction. Indeed, the Receiver makes the extraordinary demand that "[the only objections to the Confirmation of Sale Motion that the Court will consider will be objections that the Bid and See, e y., Local Rule 21 01 (“All motions shall be accompanies by a brief stating the grounds and citing the authoraues relied upon ") (emphasis added) 1789697 vvv6, Ulmer & Berne LLP 4D9201 - W88 Auction Procedures were not followed and objections to the Recciver’s determination of the Successful Bidder.” (Mot. 4 50; see also Mot. | 34). Here, the Receiver's request should be denied because it unjustifiably and prematurely prevents parties, including Nikon, from objecting to the sale, a sale whose terms are completely unknown at this time. Furthermore, the Receiver proposes that, if this Court overrules any objection filed to the Sale Motion, then “such ruling shall be considered the ‘law of the case’ and res Judicata on the parties in interest.” (Mot 450) The Receiver’s requests are not supported by law. As set forth in the Leaf Objection, the “law of the case” doctrine requires that “the decision of the reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the casc at both the trial and reviewing levels,” Hawley v Ritley, 35 Ohio St. 3d 157, 160 (1988) (emphasis added) (stating that the law of the case doctrine “will not be applied so as to achieve unjust results”). It does not, and should not be used, by a lower court to precmptively thwart a parties’ right to object to motions filed or actions taken in this case Similarly, the Receiver’s request that this Court’s ruling on the Sale Motion should have res judicata effect on partics in interest is also misplaced. As a threshold matter, any application of the doctrine of res judicata should be governed by Ohio law and, therefore, the Receiver’s request for an affirmative determination or ruling by this Court 1s both unnecessary and inappropriate. The doctrine of res yudicuta cncompasses concepts of claim and issuc preclusion, concepts that may prohibit the same parties from relitigating the same issue or claim in defined circumstances, O’Nest: v. DeBartolo Realty Corp., 113 Ohio St. 3d 59, 61 (2007). The doctrme of res judicata does not, however, apply to bar all parties in interest from litigating an issue, as asserted by the the Receiver. Id. 1789697 vwv6 Ulmer & Berne LLPD9g201 - weg Accordingly, the Receiver’s request to cut off Nikon's right to object to the sale, prior to knowing the actual terms of the sale, should be demicd. B. THE SALE PROCEDURES SHOULD BE DENIED The Receiver, less than six (6) weeks after his appointment, and without citing any Icgal authority, asks this Court to approve the sale of all of Cord’s assets. This Court should not approve such a furiously paced sale that seeks to allow Cordle, by virtuc of his ownership of Colfax, to take over Cord and escape any liability to Cord’s creditors. In particular, the Sale Motion should be denied to the extent that it (i) extinguishes Cords’s liens, claims, and encumbrances; (1) 1s based on inadequate lien investigations; (iii) provides Colfax with an unnecessary and unjustified break up fee; and (iv) rewards Colfax for receiving a fraudulent transfer Accordingly, as demonstrated below, the Sale Motion should be denied and the sale should not go forward. i. The Sale Should Not Be Free And Clear of Liens, Claims, and Encumbrances The Receiver requests that the sale “shall be free and clear of any and all liens. claims, encumbrances or interests of any kind arising either before or after the appointment of the Receiver.” As sct forth in the Leaf Objection, under Ohio law, a receiver is without authority to sell assets free and clear of Liens unless he has the prior approval and consent of the lienholders. (See Leaf Oby 4 10). Here, Leaf, among other lienholders, has not consented to the frec and clear sale of Cord’s assets. Therefore, the Sale Motion should be denied. More importantly, under Ohio law, a receiver 1s not permitted to sell, and this Court should not permit the sale of, assets free and clear of claims, where, among other things, the purchaser 1s a mere continuation of the seller or the transaction is a fraudulent attempt to escape liability. See, eg, Welco Indus., Inc. v. Apphed Cos, 67 Ohio St. 3d 344, 350 (1993) 6 1789697 vwv6 Ulmer & Berne LLPD9201 - W90 {stating that, under well recognized exceptions, a successor corporation may be held liable when . .. the buyer corporation is merely a continuation of the seller corporation); Mandulaywala v. Omnitech Elecs, Inc , 2006 Ohio 2872, at *26 (Omo Ct. App 2006) (reversing lower court and concluding, in the context of a receivership sale that, “under certain circumstances, a successor corporation may be held liable for the contractual liabilities of 11s predecessor”); (Buckholf v First Fed Sav. Bank, 102 Ohio App. 3d 400, 402 (Ohio Ct. App. 2005) (discussing, in the context of a reccivership assct sale, when a purchaser of a corporation's assets may be hable for the liability of the scller corporation); see also Flaugher v.Cone Automatic Machine Co., 30 Ohio St. 3d 60, 62 (1987) (applying the standard, in the context of the sale of a corporation’s assets, in which a purchaser corporation may be liable for the seller corporation’s liabilities). In Welco, the Ohio Supreme Court considered the circumstances in which a purchaser corporation would be liable for the contractual liabilities of its predecessor corporation. Importantly, in Welco, the Ohio Supreme Court noted that successor liability would be present where “one corporation sells its assets to another corporation with the same people owning both corporations Thus, the acquiring corporation is just a new hat for, or reincarnation of, the acquired corporation.” Welco, 67 Ohio St. at 350 (emphasis added, quotations and citations omitted); see also Mandalaywala , 2006 Ohio 2872, at *34. Here, by the Sale Motion, the Receiver is attempting to sell Cord to Colfax, entities which are both wholly owned by Cordle. Accordingly, because the sale to Colfax will merely result in a new Teincamation of Cord, successor liability cxists that would prevent the extinguishment of claims against Cord, including claims held by Nikon. Therefore, the Sale Motion should be denied. 1789697vvv6, Ulmer & Beme LLPD9g201 - w9l ii. Colfax’s Liens Should Be Adequately Investigated In the Sale Motion, the Receiver contends that Colfax “holds the first and best lien as to substantially all of the receivership assets” of Cord. (Mot. 4 10). In support, the Receiver attaches UCC financing statements to substantiate the validity Colfax’s liens, indicaung that Colfax received an assignment of such liens from Huntington. Jd, Interestingly, Colfax’s assignment of the liens was obtained less than one (1) month before Cord sought this receivership. Furthermore, the Receiver reports that the assignment was in exchange for “good and valuable” consideration, but has failed to disclose the amount of such consideration. In fact, the Receiver has failed to supply any detail with respect to the creation and perfection of such liens At a minimum, the Receiver must demonstrate to this Court that Colfax has the first and best lien on the Cord assets and that the licn was acquired for “good and reasonable consideration.” In the alternative, the sale should be delayed until Nikon and other partics have had sufficient opportunity to examine and investigate the validity of Colfax's liens. tii. The Breakup Fee Is Unwarranted The Receiver proposes to award a $25,000 breakup fee to the stalking horse bidder. A stalking horse bidder typically may recover a breakup fee when, among other things, the stalking horse has incurred expenses in connection with due diligence needed for evaluating a target company. Here, Colfax should not reap the benefit of any break up fee since Colfax is wholly owned by the same person who owns Cord. Colfax cannot identify any due diligence expenses incurred in connection with this transaction. iv. Fraudulent Transfer Claims Should Not Be Impaired Colfax, in addition to being the anticipated stalking horse bidder and being wholly owned by Cordle, may have been the beneficiary of a fraudulent transfer from Cord in 178969 7vvvo Ulmer & Beme LIPD9g201 - w92 connection with the Loan Agreement. Jn particular, under the Loan Agreement, in which Huntington loaned Colfax $4,000,000, Cord entered into an unconditional guarantce of payment and performance (the “Guarantee"), guaranteeing the obligations of Colfax under the Loan Agreement. The Receiver does not identify what, if any, consideration was given to Cord in return for the Guarantee or in exchange for the security interest granted in its assets. This Court should not permit a party which has benefited from a fraudulent conveyance to credit bid on the assets of the very party which fraudulently conveyed to it a security interest in its asscts. Under Ohio Revised Code (O.R.C.") section 1336, a creditor has a nght to bring suit to recover fraudulently transferred funds See O.R.C § 133607; Aegis Servs. v. Trans Healthcare, Inc., 2005 U.S. Dist. LEXIS 38475, at *9-*10 (S.D. Ohio Dec. 20, 2005) (denying receiver’s motion for judgment on the pleadings, and holding that the receiver is not the only party with standing to maintain a fraudulent transfer action), Nikon has the independent right to pursue recovery with respect to fraudulent transfers and this court should not approve any sales procedures which purport to extinguish those rights. In any event, Colfax’s proposed Credit Bid should be expressly limited to the value Colfax can demonstrate Cord actually received in exchange for the security interest granted in Cord’s assets. 1789697vwv6 Ulmer & Bere LLPD9201 - W93 Il. CONCLUSION For the reasons set forth above, Nikon respectfully requests that the Sale Motion be denicd. 1789697 vwv6 Ulmer & Bere LLP Respectfully submitted, tine Watchorn (0075919) 88 East Broad Street, Suite 1600 Columbus, Ohio 43215-3581 Telephone: (614) 229-0000 Facsimile: (614) 229-0001 E-Mail: cwatchorn@ulmer.com and Richard G. Hardy (0021920) Todd A. Atkinson (0077374) Skylight Office Tower 1660 West Second Street, Suite 1100 Cleveland, Ohio 44113-1448 Telephone: (216) 583-7000 Facsimile: (216) 583-7001 E-Mail: rhardy@uimer.com tatkinson@ulmer.com Counsel for Nikon IncD9201 - w94 CERTIFICATE OF SERVICE A copy of the foregoing Objection of Nikon Inc. to the Recetver’s Motion for Approval of Sate Procedures for the Sale of Receivership Assets Free and Cicar of Liens has been sent to the parties shown on the attached Service List, via regular E-Mail or regular U.S. Mail, postage prepaid, this 12th day of August, 2009. David G. Simonette, Esq. Myron N. Terlecky, Esq. Simonette Law Firm, Inc. Aaron C. Firstenberger, Esq. 123 South High Street Strip, Hoppers, Leithart Dublin, Ohio 43017 575 South Third Street dsimoi imonettelawfirm.com Columbus, Ohio 43215 Attorney for Plainuff mnt@columbuslawyer net columbusla' “net Attorneys for the Receiver Keith M. Karr, Esq. Randy T. Slovin David W. Culley, Esq. Slovin & Associates Co., LP Karr & Sherman Co., LPA 9435 Waterstone Blvd., Suite 270 2 Miranova Place, Suite 410 Cincinnati, Ohio 45249 Columbus, Ohio 43215 sclpa@sclpa.com kkarr@karrsherman.com Attorney for Canon Financial Services deulley@karrsherman.com Attorney for Microman, Inc. J. Matthew Fisher Allen, Kuehnle & Stovall 17 South High Streeet, Suite 1220 Columbus, Ohro 43215 fisher@aksnlaw.com Attorney for Colfax Financial hristine Watchorn (0075919) Ulmer & Berne LLP Counsel for Nikon Inc. 11 1789697 vvv6, Ulmer & Berne LLPD9201 - W95 EXHIBIT BD9201 - W96 ZENO 9099052800581 138136 waar 3 nantes varus tha le Recor bor OPEN-END MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (FIRST MODIFICATION) ‘THIS OPEN-END MORTGAGE, ASSIGNMENT OF RENTS ANI) SECURIIY AGREEMENT (FIRS | MODIFICATION) (“Modification”), ws dated as of the _12 da, of Apal, 2009 C"Ftfcctove Pata") by and amung CCC REAL ESTATE HOLDINGS LLC, at Ohro Ieuted Aunbility company ("CCC"), STLVEN L. CORDLE, a merned uncdhvidual resident uf de: Suite of Ohio ("Cordis"), 3981-3983 MAN STREGT, LLC, an Ohio limited liability company ("Man Steet"), CORD CAMERA CENTERS, INC, an Obo corporation ("Cord"), 6032 HAYDEN RUN ROAD, LLC, en Oboe lumted lability conipany (“Hayden Run” and, collecuvely wih CCC, Cordle, Mam Street ond Cord, "Qnginal Moricagum"). HAYDEN RUN ROAI INVES™MEML CO. LLC. a1 Olu limited hailty company ("Hayden Invesment") and 745 HARRISON DRIVE, LLC, an Ohww lianted hobily company ("Harnson™ and, together with Hayden Invesament, the "New Mongapor", the Onyinal Mortgugom sud the hew Mongagors ure, collectively, the “Merygzors"), the Morigagors all huving an address of c/o Cord Cumera Conon, Inc. 2030 Dividend Dnve, Columbus, Ohio 43228, end THIS HUNTINGTON NATIONAL, BANK, a nations! Sonking associelion, having on olftce ut 4] South "igh Si ‘Columbus, Otuw 43215 ("Hupungton"). WHERCAS, Hunungioa sad Colfax Financial, LLC, an Ohio hinted lability company (Romower") arc porues to a cea Loan Agreement datcd September 5, 2008 (the "Luan Astament*) pursusnt to which Hurnngion ngreed to loen w Borrower an amaunt not to excced Four Vullion Dollers ($4,000,000 00) {the "oan": WHEREAS, the Loon as evulenced by a cenain Commerce Term Loan Note dated Sepiumber 5, 2008, by Borrower to Huntington (the "Nufe"), WHERPAS, with ine exception of Cardle, who (in addition to Borrower) 1s dicctly obhgated under the Note, each of the Original Morgagors pnrantced Borrower's ol gations under the Nine pursemt to one or signe Unconiituna! Guarantess of Payment and Merfortence dated Sepverver 5, 2008 (collectively, the “Guarantees” ); WHEREAS, the Nots, and Onginel Momgagors' Guarintees thercof, are secured by a certain Open-End Mortgage, Assignment of Renistend Secunty Agreement dated Scptember 5, 2008, and reeondod at {nstrumert No_ 20K0809 100137276, Franklin County Recorder's Office, frum Onginal Mongagors to Hunuingion which Mortgage created a lien upon the real property described tn Exlitat A w the Mongage (as modified by thea ecstnin Vartial Releast. of Monyage recorded ut Instrument No 200707 2L005C 598 _, Fronkhn County Recorder's Oilice, the “Morizage”); WHEREAS, pursuant to thit ceruun Warrauty Deed of even duie herevath, Cord has conveyed that certian real propery ideaufied as "Trect XI" on Exhibit A to the Murigage tc fameon. sapeattD9g201 SOI Ww97 WHERIAS, pursuant to thai corta.n Warranty Deed of even date herewith, Hayden Roo has conveyed that certain ral property dentfied as “Teact XI" an Exhibit «\ tu the Mongsge wu Hayden Jnvestmeni, WHEREAS, Munnngion ano the Mongagors wish to modify the Murgage tu reflect the ‘Trunsi.r of the aforemennoned properties to the New Mortgagors, ond WIILREAS, a] capuzhzed terms used herein and not specifically defined shall have the meaning set forth in te Murtgage: NOW, THEREFORI: m consideration of the foregoing pronuscs and the covenanis contanud kerr and other valuable cunsiderntion, the partics hereto agroc as follows | MODIFICATION. OF MORTGAGE’ NEW MORIGAGORS The Mongage 1s hereby mouitied io provide that New Martgegors slull hereinafter be partics to the Mortgage, 25 af they had eaceated the Mortgage originally. New'Mortgagors do hereby grant, bargait, sel! aad ‘convey that poston of che Mortguged Property owned by New Mortgagors to the sume effect us if! they hed bren ongmu! parties to the Murtgage, The defimtan of “Mongagor” in the Morigage shall now include not caly the Onginal Mortgayors but also the New Mongagors. 2 RATIFICATION 01 MORIGAGE AND OUIIER LOAN DOCUMENTS ‘the Morguge, us modified, 1s in oll respects ratzfted and confirmed by the partes hervto and the ‘Mortgage, as moditied, and chis Modhficuon shal! be read, taken ond construed @s ons und che saniv instrument = Mongugors farther uchnowledge and agree that all securdy ayreemens, financing statements, docunrenis, instruments, certificates, affldavis and other security documents taken as collateral for the Note are intended to and shall continue to secure the Loan ‘eral shall rempin in full force and effect, Borrower hereby acknawleuges und agrees that it bus uo defenses to of nghis of setoff agsinst Huntington under the Note. Borrower hereby further acknowledges thar, as of che Effective Datc, Huntington: has performed all of Hunungion's obligations under the Note, the Loan Agresment and any other documents relating to the Laem, 3. RATIEIGALION OF GUARANIRES, The Original Mortgagors who ate parties ta Gusrantess peknowledge and agree to the terms of the foregoing Modification and hereby raufy and cunfina each und every obligation under the respectuve Guarantees, and agree to he ound by chew terms and conditions, Guarantors acknowledge and agsce that Guarantors, as of the date hereof, have io defenses to or nights of setoff against Guarantors’ abligations and al! {iobuluy to Huaiingion under the Guarantees, respectively 4 RECORDING, ENDORSEMENT TQ_ TITLE INSURANCE _P Mortgagars shall file an executed ongiral of ths Modificahon wath the Recorder of Franklin County, Ohio, and shall deliver to Huntingion. within thirty (30) days after the Fifecnve Date, stch recorded Modficsuon and shall cause tithe uisurer to issue an endorsenunt satisfactory ta ‘Hurtmnon. EI W Thus Modhfication shall be interpreted and construed in sccortouce vath and poverned by che laws of the State of OhioD9201 - W98 6 = COUNTERPARTS. This Modification may be executed in counterparts, esch at whuth shall be deemed en onginal, but all of which mken together shall constitute but onc acd the same instrament. {REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] wetherD9201 - W99 IN WITNESS WHEREOE, the undersigned have caused this Modification to be executed dy thur duly euthon..ed representatives as of the day and year first above written. MORTGAGORS HAYDEN RUN ROAD INVESTMENT CO , LLC, un Ohio limted ability company By CORD CAMERA CENTERS, INC, .s corporation, an ‘Steven L Cordle, Presilent me SATE OF ORO COUNTY OF FRANKLIN SS The foroyung mnsiument was exrewed md acknowledged before me this J day of Apri, 2009, by Steven L. Cordle, the President of Cord Camera Centcis, Inc. on Ohiv corporation, the sole member of Hayden Run Road investment Co.. LLC, an Ohio Irmted lnnbility: company, on behalf of such company. Commission Expurauom __ M*sIAL X1 743 HARRISON DRIVER, LLC, an Ohio limited lubility company By CORDCAMERA CENTERS, INC, an Ohi corporauon, . 1, Shen AGL fetenlod Steven L. Conde, President STALE OF UHIO COUNTY OF FRANKLIN: SS She foregcing insirement was executed ang acknowledged before me dus Js” day af April, 2009, by Steven L. Cordle, the President of Cord Camera Centers, inv., an Ohio corporation, the sole member of 745 bisman Drive, LI C, a0 Ghia limited liabibty vorspan, us fs . behalf of such conupany, ib bL _ Nocay Pubhe ~~ Comrussion Expirskon _ a?D9g201 It X2 CUC REAL ESTATE HOLDINGS, LLC, us Ohio hanited lrabilty: by STATE 0} O10 COUNTY OF FRANKLIN SS a The foregomg mnstrument was exccuted and acknowledged before meus 1S aay of Apnl, 2009. by Steven L. Conile, the Managiug Member uf CCC Real Estate Holdings, LLC, an Otro him ted habiluy company, un behalf of the company " fuoke Notary PublicD9g201 - AMAL X3 2, SVEN 1. DLE, Individually ‘STATE. OF OHIO COUNTY OF FRANKLIN SS. The foregoing tnstr.snemt was exccuted and mhoowledged bertwe mic tms5th day of Sepeanber, 2008, by Steven [. CoraleD9201 - X4 CORDLI", spouse of Sicvin L_ ‘Curdle,\yyho herehy releases her nghts of dower tu fhe portida of the Property owned by Steven I. Cordlc STAT OF OHKD COUNTY OF FRANKISN 5S The foregomg irstrument was executed and acknowledged beftre me thi oA cay ot Apal, 2009, by Julia Michelle Conte . Lp a tl . . ‘Notury Public Commusion Lxpirat on, wh Ru '