EXHIBIT 10.4
THIS INSTRUMENT PREPARED BY:
Xxxxxxx X. Xxxxx, Esq.
Xxxxx, Xxxxxxx & Xxxxxxx, P.C.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS
AND
FIXTURE FILING
XXXX Realty, LLC, a Michigan limited liability company
(Borrower)
in favor of
PNC BANK, NATIONAL ASSOCIATION
(Lender)
Dated: September 9, 2005
Location: 0000 Xxxxxxxxx Xxxxx Xxxxxxx, XxXxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxx
RECORD AND RETURN TO:
PNC Bank, National Association
00000 Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Closing Department
Loan No.: 00-0000000
MCF 415
Mortgage (AL)
Last revised 7/5/05
THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND
FIXTURE FILING (the "Security Instrument") is made as of September 9, 2005, by
XXXX Realty, LLC, a Michigan limited liability company ("Borrower"), having its
principal place of business at 00000 Xxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 in
favor of PNC Bank, National Association ("Lender"), having a mailing address at
00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000.
RECITALS:
To secure the payment of an indebtedness in the stated principal amount of
One Hundred Million and No/100 Dollars ($100,000,000.00), lawful money of the
United States of America, to be paid with interest according to a certain
contemporaneously executed Promissory Note made by Borrower to the order of
Lender (said Promissory Note, together with all extensions, renewals or
modifications thereof, is referred to as the "Note", and said indebtedness,
interest and all other sums due hereunder, and under the Note and the Other
Security Documents (hereinafter defined), including applicable attorney fees and
costs, is collectively referred to as the "Debt"), Borrower hereby irrevocably
mortgages, gives, grants, bargains, sells, alienates, conveys, confirms,
pledges, assigns, grants a security interest in, and hypothecates to Lender, its
successors and assigns, with the right to entry and possession, all of its
estate, right, title and interest in, to, and under any and all of the following
described property (collectively the "Mortgaged Property"), whether now owned or
held or hereafter acquired:
(a) The real property described in Exhibit A attached hereto (the
"Premises") and the buildings, structures, additions, enlargements, extensions,
modifications, repairs, replacements and improvements now or hereafter located
thereon (the "Improvements");
(b) all easements, rights-of-way, strips and gores of land, streets, ways,
alleys, passages, sewer rights, water, water courses, water rights and powers,
air rights and development rights, and all estates, rights, titles, interests,
privileges, liberties, tenements, hereditaments and appurtenances of any nature
whatsoever, in any way belonging, relating or pertaining to the Premises and the
Improvements and the reversion and reversions, remainder and remainders, and all
land lying in the bed of any street, road or avenue, opened or proposed, in
front of or adjoining the Premises, to the center line thereof and all the
estates, rights, titles, interests, dower and rights of dower, curtesy and
rights of curtesy, property, possession, claim and demand whatsoever, both at
law and in equity, of Borrower of, in and to the Premises and the Improvements
and every part and parcel thereof, with the appurtenances thereto; and
(c) all other assets of Borrower, of every kind and nature, now existing
and hereafter acquired and arising and wherever located, related to the
ownership or operation of the Premises, including without limitation, accounts,
deposit or reserve accounts, commercial tort claims, letter of credit rights,
chattel paper (including electronic chattel paper), documents, instruments,
investment property, general intangibles (including payment intangibles),
software, goods, inventory, equipment, furniture and fixtures, all supporting
obligations of the foregoing, and all cash and noncash proceeds and products
(including without limitation insurance proceeds) of the foregoing, and all
additions and accessions thereto, substitutions therefor and replacements
thereof, and including, without limitation, the following;
(1) all machinery, equipment, fixtures (including but not limited to
all heating, air conditioning, plumbing, lighting, communications and elevator
fixtures), building equipment, materials and supplies, and other property of
every kind and nature, whether tangible or intangible, owned by Borrower, or in
MCF 415
Mortgage (AL)
Last revised 7/5/05
which Borrower has or shall have an interest, now or hereafter located upon the
Premises and the Improvements, or appurtenant thereto, and usable in connection
with the present or future operation and occupancy of the Premises and the
Improvements (hereinafter collectively called the "Equipment"), including the
proceeds of any sale or transfer of the foregoing, and, without limiting the
generality of the foregoing, if any such Equipment is subject to any prior
security interest or prior security agreement (as such terms are defined in the
Uniform Commercial Code, as adopted and enacted in the state or states in which
any of the Mortgaged Property is located), then the Mortgaged Property shall
include all of the right, title and interest of Borrower in and to any such
Equipment, together with all deposits and payments now or hereafter made by
Borrower with respect to such Equipment;
(2) all awards, payments or compensation, including interest thereon,
heretofore or hereafter made with respect to the Mortgaged Property for any
injury or decrease in the value of the Mortgaged Property related to any
exercise of the right of eminent domain or condemnation (including without
limitation, any transfer made in lieu of or in anticipation of the exercise of
said rights or for a change of grade);
(3) all leases, reciprocal easement agreements, and other agreements
and arrangements affecting the use, enjoyment or occupancy of, or the conduct of
any activity upon or at the Premises and the Improvements heretofore or
hereafter entered into (the "Leases"), all income, rents (including, without
limitation, all percentage rents), issues, profits and revenues (including all
oil and gas or other mineral royalties and bonuses) from the Mortgaged Property
(the "Rents") and all proceeds from the sale or other disposition of the Leases
and the right to receive and apply the Rents to the payment of the Debt;
(4) all proceeds of, and any unearned premiums on, any insurance
policies covering the Mortgaged Property, including, without limitation, the
right to receive and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Mortgaged Property;
(5) the right, in the name and on behalf of Borrower, to appear in and
defend any action or proceeding brought with respect to the Mortgaged Property
and to commence any action or proceeding to protect the interest of Lender in
the Mortgaged Property; and
(6) all other property or collateral of any nature whatsoever, now or
hereafter given as additional security for the payment of the Debt, including
without limitation, property management agreements now or hereafter entered into
with any person or entity providing management services to the Mortgaged
Property, service contracts, common area agreements, licenses, permits,
construction warranties and other contracts, agreements and instruments relating
to the Mortgaged Property (including, without limitation, agreements pursuant to
which Borrower acquired any of the Mortgaged Property, and including any
security or indemnities given in connection therewith), security deposits,
royalties, refunds, expense reimbursements, reserve or escrow deposits or
accounts related to the Mortgaged Property or any Lease and all documents
relating to each of the foregoing.
TO HAVE AND TO HOLD the Mortgaged Property unto and to the use and
benefit of Lender, and the successors and assigns of Lender, forever to secure
the payment to Lender of the Debt at the time and in the manner provided for its
payment in the Note, in this Security Instrument or in the Other Security
Documents;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if Borrower shall pay to Lender the Debt at the time and in the manner provided
in the Note, in this Security Instrument or in the Other Security Documents, and
shall abide by and comply with each and every covenant and condition
MCF 415
Mortgage (AL)
Last revised 7/5/05
-3-
set forth herein and in the Note in a timely manner, these presents and the
estate hereby granted shall cease, terminate and be void, and Lender shall
execute and deliver to Borrower a satisfaction or discharge of this Security
Instrument, in recordable form.
Borrower hereby represents and warrants to and covenants and agrees with
Lender as follows:
1. Payment of Debt and Incorporation of Covenants, Conditions and
Agreements. Borrower will pay the Debt at the time and in the manner provided in
the Note, this Security Instrument and the Other Security Documents. All the
covenants, conditions and agreements contained in: (a) the Note; and (b) all and
any documents (other than the Note or this Security Instrument) (collectively
the "Other Security Documents") now or hereafter executed by Borrower and/or
others in favor of Lender, which wholly or partially secure or guaranty payment
of the Note, provide for any indemnity in favor of or payment to Lender related
to the Debt, the Note or the Mortgaged Property, provide for any escrow/holdback
arrangements or for any actions to be completed by Borrower subsequent to the
date hereof, or are otherwise related to the loan secured by this Security
Instrument (the "Loan"), are hereby made a part of this Security Instrument to
the same extent and with the same force as if fully set forth herein.
Notwithstanding anything herein to the contrary, neither this Security
Instrument nor any of the Other Security Documents shall secure the payment of
any Environmental Losses (as defined in that certain Environmental Indemnity
Agreement executed in favor of Lender contemporaneously herewith).
2. Warranty of Title. Borrower warrants that Borrower has good title to the
Mortgaged Property and has the right to mortgage, give, grant a security
interest in, bargain, sell, alienate, convey, confirm, pledge, assign and
hypothecate the same and that Borrower possesses an unencumbered fee estate in
the Premises and the Improvements and that it owns the Mortgaged Property free
and clear of all liens, encumbrances and charges whatsoever except for those
exceptions shown in the title insurance policy in favor of Lender insuring the
lien of this Security Instrument, none of which will materially and adversely
affect the ability of Borrower to pay in full the Debt, the use of the Mortgaged
Property for the use currently being made thereof, the operation of the
Mortgaged Property, or the value of the Mortgaged Property. Borrower shall
forever warrant, defend and preserve such title and the validity and priority of
the lien of this Security Instrument to Lender against the claims of all persons
whomsoever.
3. Insurance Requirements.
(a) Borrower, at its sole cost and expense, will keep the Mortgaged
Property insured during the entire term of this Security Instrument for the
mutual benefit of Borrower and Lender against loss or damage by fire and against
loss or damage by other risks and hazards covered by a standard extended
coverage insurance policy providing "special" form coverage including, but not
limited to, fire, lightning, explosion, windstorm or hail, smoke, aircraft or
vehicles, riot or civic commotion, terrorism, vandalism, malicious mischief,
burglary, theft, sprinkler leakage, sinkhole collapse, volcanic action, falling
objects, weight of snow, ice or sleet or water damage, and to the extent
required by Lender, earthquake or any other risks insured against by persons
operating like properties in the locality of the Mortgaged Property. Such
insurance shall be in an amount not less than the lesser of (i) the then full
replacement cost of the Mortgaged Property, without deduction for physical
depreciation, or (ii) the outstanding principal balance of the Debt; but in any
event an amount sufficient to ensure that the insurer issuing said policies
would not deem Borrower a co-insurer under said policies. The policies of
insurance carried in accordance with this paragraph shall be paid annually in
advance, shall contain the "Replacement Cost Endorsement" with a waiver of
depreciation, and, if required by Lender, shall contain "Ordinance and Law"
coverage.
MCF 415
Mortgage (AL)
Last revised 7/5/05
-4-
(b) Borrower, at its sole cost and expense, for the mutual benefit of
Borrower and Lender, shall also obtain and maintain during the entire term of
this Security Instrument the following policies of insurance:
(i) Flood insurance (meeting the current requirement of the
Federal Insurance Administration) if any part of the Mortgaged Property is
located in an area identified by the Federal Emergency Management Agency as an
area having special flood hazards and in which flood insurance has been made
available under the Flood Disaster Protection Act of 1973 (and any successor act
thereto) in an amount at least equal to the lesser of (A) the outstanding
principal balance of the Debt; (B) the maximum amount of coverage available to
Borrower under the National Flood Insurance Program; or (C) the then full
replacement cost of the Mortgaged Property, without deduction for physical
depreciation.
(ii) General liability insurance on an "occurrence basis", in the
amount of at least $1,000,000.00 per occurrence, $2,000,000.00 general aggregate
against claims for bodily injury or property damage occurring on, in or about
the Mortgaged Property.
(iii) Business Income and/or Rental Value insurance in an amount
equal to the sum of: (A) the total anticipated rental income (including
percentage rents) payable by all tenants under Leases (whether or not such
Leases are terminable in the event of a fire or casualty); (B) the total amount
of all Taxes (hereinafter defined), Other Charges (hereinafter defined) or
similar charges which a tenant is obligated to pay on Borrower's behalf; and (C)
an amount equal to the fair rental value of any portion of the Mortgaged
Property occupied by Borrower; for a period of at least twelve (12) months after
the date of the fire or other casualty in question. The amount of such insurance
shall be increased from time to time during the term of this Security Instrument
as and when Lender requires, to reflect all rent, additional rent, increased
rent and increased additional rent payable by all new or renewal tenants, and
all increased profits or other income from the Mortgaged Property. No exclusions
shall be allowed for any risks specifically enumerated in subsection (a) above.
(iv) Boiler and Machinery Insurance if any steam boiler, air
conditioning equipment, high pressure piping, machinery and equipment pressure
vessels or similar apparatus now exists or is hereafter installed in the
Improvements (excepting any such apparatus located within and serving individual
residential units of the Improvements, if any).
(v) Such other insurance as may from time to time be reasonably
required by Lender in order to protect its interests.
(c) All policies of insurance (individually, a "Policy", and
collectively the "Policies") required pursuant to this Security Instrument: (i)
shall be issued by an insurer satisfactory to Lender, in its sole discretion;
(ii) shall contain a mortgagee non-contribution clause satisfactory to Lender,
in its sole discretion, naming Lender as the person to which all payments made
by such insurance company shall be paid; (iii) shall be maintained throughout
the term of this Security Instrument without cost to Lender; (iv) shall be
assigned and delivered to Lender; (v) shall contain such provisions as Lender
deems necessary or desirable to protect its interest including, without
limitation, endorsements providing that neither Borrower, Lender nor any other
party shall be a co-insurer under said Policies and that Lender shall receive at
least thirty (30) days prior written notice of any modification, termination or
cancellation of the applicable Policy; and (vi) shall be satisfactory in form
and substance to Lender and shall be approved by Lender as to amounts, form,
risk coverage, deductibles,
MCF 415
Mortgage (AL)
Last revised 7/5/05
-5-
loss payees and insureds. Borrower shall pay the premiums for such Policies (the
"Insurance Premiums") as the same become due and payable. Not later than thirty
(30) days prior to the expiration date of each of the Policies, Borrower will
deliver to Lender satisfactory evidence of the renewal of each expiring Policy.
(d) If insurance for earthquake or special hazards is obtained by
Borrower in its sole discretion and without requirement of Lender, then
Borrower, when obtaining such insurance coverage, shall meet the insurance
requirements hereof except as to matters requiring Lender's further approval,
and such insurance coverage: (i) shall be within the meaning of a "Policy" or
"Policies"; and (ii) shall be for the benefit of Lender and all proceeds thereof
constitute additional security for the Debt, and Lender shall have all rights
with respect to and be entitled to receive all proceeds in the same manner it
would receive any Insurance Proceeds (hereinafter defined) in the event the
Mortgaged Property is damaged or destroyed by a Casualty (hereinafter defined)
or by any risk or loss insured against.
(e) Any failure by Lender to insist on full compliance with all of the
above insurance requirements at closing does not constitute a waiver of Lender's
right to subsequently require full compliance with these requirements.
4. Casualty Loss.
(a) If the Mortgaged Property is damaged or destroyed, in whole or in
part, by fire or other casualty (a "Casualty"), Borrower shall give prompt
notice thereof to Lender. Borrower hereby authorizes and empowers Lender to
settle, adjust or compromise any claims for any insurance proceeds arising from
any Casualty (the "Insurance Proceeds"), to receive such Insurance Proceeds and
to retain and apply such Insurance Proceeds as set forth herein. If no Event of
Default (hereinafter defined), or event which with the giving of notice or
passage of time, or both, would give rise to an Event of Default, has occurred
as of the date of the Casualty or as of the date any Insurance Proceeds are to
be paid or disbursed to Borrower, then:
(i) If the aggregate amount of any Insurance Proceeds resulting
from a Casualty is equal to $25,000.00 or less, such Insurance Proceeds shall be
paid directly to Borrower and shall be applied by Borrower to the prompt repair
and replacement of the Mortgaged Property;
(ii) If the aggregate amount of any Insurance Proceeds resulting
from a Casualty (or series of related Casualties) exceeds $25,000.00 and the
value of the Mortgaged Property immediately following such Casualty remains
greater than fifty percent (50%) of its value immediately prior to such
Casualty, then all Insurance Proceeds from such Casualty shall be paid to
Lender; provided, however, that so long as no Event of Default exists and
subject to the requirements set forth herein, Lender shall disburse such amounts
of the Insurance Proceeds (after deduction for Lender's costs and expenses of
collection) as Lender reasonably deems necessary for the repair or replacement
of the Mortgaged Property, with any balance remaining after such disbursement
being applied by Lender to the Debt in such priority and proportions as Lender
deems proper;
(iii) If the value of the Mortgaged Property immediately
following any Casualty (or series of related Casualties) does not exceed fifty
percent (50%) of its value immediately prior to such Casualties, then all
Insurance Proceeds from such Casualties shall be paid directly to Lender and
Lender, at its discretion may declare the entire Debt to be immediately due and
payable and apply all such Insurance Proceeds, after deduction for Lender's
costs and expenses of collection, to the Debt in such priority and proportions
as Lender deems proper. In the event Lender does not declare the entire Debt to
be immediately
MCF 415
Mortgage (AL)
Last revised 7/5/05
-6-
due and payable, Borrower shall promptly repair, replace or rebuild any part of
the Mortgaged Property destroyed by such Casualty. In such event, subject to the
requirements set forth herein, Lender shall disburse such amounts of the
Insurance Proceeds as Lender reasonably deems necessary for the repair or
replacement of the Mortgaged Property, with any balance remaining after such
disbursement being applied by Lender to the Debt in such priority and
proportions as Lender deems proper; and
(iv) If no Event of Default (as hereinafter defined) has
occurred, and no event has occurred that with notice and/or the passage of time,
or both, would constitute an Event of Default, then no Prepayment Consideration
(as defined in the Note) will be then due with respect to any application of
Insurance Proceeds to the Debt pursuant to subclauses (ii) or (iii) above, or
with respect to any required prepayment of the entire Debt pursuant to Lender's
election to declare the entire Debt to be immediately due and payable pursuant
to subclause (iii) above. An Event of Default which existed but which was
completely cured prior to the date of Casualty shall not in itself give rise to
any Prepayment Consideration under this subsection.
(b) All disbursements of any portion of any Insurance Proceeds held by
Lender shall be subject to all terms and conditions deemed necessary by Lender,
including: (i) Lender's receipt of satisfactory requests for disbursements, paid
bills and lien waivers, architect certificates or other certificates, and
certificates or endorsements from title insurance companies; (ii) Borrower's
deposit with Lender of any additional funds necessary to supplement the
Insurance Proceeds, so as to cover, in advance, the entire cost of the necessary
repairs or replacements to the Mortgaged Property as established by the
certificate of an architect or engineer (employed by Lender at Borrower's
expense); (iii) such architect's or engineer's determination that such repairs
or replacements may be effected within a period of six (6) months or less; and
(iv) Borrower's prompt and diligent completion of such repairs or replacements
in accordance with plans and specifications submitted to and approved by Lender;
and (v) Lender's inspection, at Borrower's cost and expense, of the repairs or
replacements to the Mortgaged Property to verify that such repairs or
replacements have been completed in a good and workmanlike manner and are
otherwise acceptable to Lender. Lender, whether in possession of the Premises or
not, shall not have any obligation to advance or make funds other than the
Insurance Proceeds available for the repair or replacement of the Mortgaged
Property.
5. Payment of Taxes and Other Charges.
(a) Borrower shall pay or cause to be paid and discharged all taxes,
assessments, water rates and sewer rents now or hereafter levied or assessed or
imposed against the Mortgaged Property or any part thereof (collectively the
"Taxes"), and all ground rents, utility charges, maintenance charges, other
governmental impositions, and all other liens or charges whatsoever which may be
or become a lien or charge against the Mortgaged Property (including without
limitation, mechanics and materialmen's liens, vault charges and license fees
for the use of vaults, chutes and similar areas adjoining the Premises), now or
hereafter related to, or levied, assessed or imposed against, the Mortgaged
Property or any part thereof (collectively the "Other Charges") as the same
become due and payable. Borrower will deliver to Lender, promptly upon Lender's
request, evidence satisfactory to Lender that the Taxes and Other Charges have
been paid prior to the same becoming delinquent.
(b) After prior written notice to Lender, Borrower, at its own
expense, may contest by appropriate legal proceeding, promptly initiated and
conducted in good faith and with due diligence, the amount or validity or
application in whole or in part of any of the Taxes or Other Charges, provided
that: (i) no Event of Default has occurred and shall be continuing; (ii)
Borrower is permitted to do so under the
MCF 415
Mortgage (AL)
Last revised 7/5/05
-7-
provisions of any mortgage, deed of trust, ground lease, or other instrument
which creates a superior or junior lien to this Security Instrument (it being
understood that no such superior or junior liens will be permitted unless
specifically allowed, in writing, by Lender); (iii) such proceeding shall be
permitted under and be conducted in accordance with the provisions of any other
instrument to which Borrower is subject and shall not constitute a default
thereunder; (iv) neither the Mortgaged Property nor any part thereof or interest
therein will be in danger of being sold, forfeited, terminated, cancelled or
lost; (v) Borrower shall have set aside adequate reserves (which Lender may at
its option require to be placed in escrow with Lender) for the payment of the
Taxes or Other Charges, together with all interest and penalties; and (vi)
Borrower shall have furnished such security as may be required in the
proceeding, or as may be requested by Lender to insure the payment of any such
Taxes or Other Charges, together with all interest and penalties thereon.
6. Escrowed Funds. Borrower shall, at the option of Lender or its designee,
pay to Lender or its designee on the first day of each calendar month
one-twelfth of an amount which would be sufficient to pay all Insurance
Premiums, Taxes and Other Charges payable, or estimated by Lender to be payable,
during the next ensuing twelve (12) months. (The aggregate of said amounts so
held by Lender is hereinafter called the "Escrowed Funds"). Borrower hereby
pledges to Lender any and all Escrowed Funds now or hereafter held by Lender as
additional security for the payment of the Debt. Lender will apply the Escrowed
Funds to payments of Taxes, Other Charges and Insurance Premiums required to be
made by Borrower pursuant hereto. If the amount of the Escrowed Funds held by
Lender shall exceed the amounts required for the payment of the Taxes, Other
Charges and Insurance Premiums described above, Lender shall, in its discretion,
return any excess to Borrower or credit such excess against future payments to
be made to the Escrowed Funds. If, at any time, the Escrowed Funds are not
sufficient to pay the Taxes, Other Charges and Insurance Premiums described
above, Borrower shall promptly pay to Lender, upon demand, an amount which
Lender shall estimate as sufficient to make up the deficiency. Upon the
occurrence of an Event of Default, Lender may apply any Escrowed Funds held by
it to the payment of the following items in any order in its sole discretion:
(i) Taxes and Other Charges;
(ii) Insurance Premiums;
(iii) Interest on the unpaid principal balance of the Note;
(iv) Amortization of the unpaid principal balance of the Note;
and
(v) All other sums payable pursuant to the Note, this Security
Instrument and the Other Security Documents, including
without limitation advances made by Lender pursuant to the
terms of this Security Instrument and any applicable
Prepayment Consideration.
Until expended or applied as above provided, the Escrowed Funds shall constitute
additional security for the Debt. The Escrowed Funds shall not constitute a
trust fund and may be commingled with other monies held by Lender. No earnings
or interest on the Escrowed Funds shall be payable to Borrower.
To the extent Borrower timely deposits all required Escrowed Funds with
Lender, Borrower shall be relieved of any further obligation to directly pay, or
to deliver to Lender any evidence of the payment of (prior to their expiration
or delinquency), any Insurance Premiums, Taxes or Other Charges.
MCF 415
Mortgage (AL)
Last revised 7/5/05
-8-
7. Condemnation. Borrower shall promptly give Lender written notice of the
actual or threatened commencement of any exercise of a right of condemnation or
eminent domain affecting all or any part of the Mortgaged Property (each such
event being hereinafter referred to as a "Condemnation"), and shall deliver to
Lender copies of any and all papers served in connection with any such
Condemnation. Notwithstanding any taking (including but not limited to any
transfer made in lieu of or in anticipation of the exercise of such taking) of
all or any part of the Mortgaged Property through a Condemnation, Borrower shall
continue to pay the Debt at the time and in the manner provided for its payment
in the Note, this Security Instrument and the Other Security Documents, and the
Debt shall not be reduced until any award or payment therefor shall have been
actually received and applied by Lender (after deducting any expenses of
collection, including reasonable attorney's fees) to the Debt. Lender shall not
be limited to the rate of interest paid on any such award or payment from a
Condemnation but shall be entitled to receive out of such award or payment
interest at the rate then applicable under the Note. Borrower shall cause any
award or payment payable to Borrower in any Condemnation to be paid directly to
Lender. Lender shall apply, at Lender's discretion, any such award or payment
(after deducting any expenses of collection, including reasonable attorney's
fees) to (x) the reduction or discharge of the Debt (whether or not then due and
payable), or (y) the restoration, repair, replacement, or rebuilding of the
portion of the Mortgaged Property remaining after such condemnation. No
Prepayment Consideration shall be payable solely in connection with such
application; provided, however, that notwithstanding the foregoing, if an Event
of Default is existing as of the date of the Condemnation, or an event has
occurred as of the date of the Condemnation that with notice and/or the passage
of time, or both, would constitute an Event of Default hereunder, then any
Condemnation awards or proceeds applied to the Debt pursuant to this section
shall be subject to the Prepayment Consideration computed in accordance with the
terms of the Note. If the Mortgaged Property is sold, through foreclosure or
otherwise, prior to the receipt by Lender of any such award or payment, Lender
shall have the right, whether or not a deficiency judgment on the Note shall
have been sought, recovered or denied, to receive said award or payment in an
amount sufficient to fully satisfy the Debt.
8. Leases and Rents. Borrower does hereby absolutely and unconditionally
assign to Lender all current and future Leases and Rents, it being intended by
Borrower that this assignment constitutes a present, absolute assignment and not
an assignment for additional security only. The terms and conditions of this
assignment shall be governed by the Assignment of Leases and Rents (the
"Assignment of Leases") executed by Borrower in favor of Lender
contemporaneously with this Security Instrument. Except as permitted pursuant to
the Assignment of Leases, Borrower shall not enter into any future Leases of all
or any part of the Mortgaged Property.
9. Maintenance, Use and Management of Mortgaged Property.
(a) Borrower shall maintain the Mortgaged Property in good condition
and repair and in such a manner as to allow the Mortgaged Property to remain
consistently competitive in its market. The Improvements and the Equipment shall
not be removed, demolished or materially altered (except for normal replacement
of the Equipment) without the consent of Lender, not to be
MCF 415
Mortgage (AL)
Last revised 7/5/05
-9-
unreasonably withheld. Borrower shall promptly repair, replace or rebuild any
part of the Mortgaged Property which may become damaged, worn or dilapidated,
and shall also complete and pay for any structure at any time in the process of
construction or repair on the Premises. Borrower shall promptly comply with all
laws, orders and ordinances affecting the Mortgaged Property, or the use
thereof, except that Borrower shall be permitted to contest any change or
proposed change thereto under the same terms and conditions as permitted in
paragraph 5(b), above.
(b) Without limiting any rights Lender or its selected representatives
may possess hereunder, under the Note or under any Other Security Document to
inspect the Mortgaged Property, Lender shall have the right to conduct physical
inspections of the Mortgaged Property to ensure Borrower is appropriately
maintaining the Mortgaged Property. Following any such inspection, should Lender
determine that the Mortgaged Property has not been maintained as required
herein, Lender shall have the right to demand that Borrower complete corrective
measures within a ninety (90) day period of time. Failure of Borrower to
complete such corrective measures within such period shall constitute an
immediate Event of Default and shall entitle Lender to exercise all remedies
available to it, including, without limitation, performing Borrower's
obligations hereunder.
(c) Borrower shall use and continuously operate and permit the use and
continuous operation of the Premises and the Improvements as provided for in
Borrower's original loan application to Lender.
(d) Unless Lender otherwise consents in writing, Borrower shall not
initiate, join in, acquiesce in or consent to: (i) the removal or resignation of
the property manager for the Mortgaged Property; or (ii) if such property
manager is an entity affiliated with Borrower, the transfer of ownership,
management or control of such property manager to a person or entity other than
Borrower, its managing member, general partner or similar controlling entity in
Borrower.
(e) Unless Lender otherwise consents in writing, Borrower shall not
initiate, join in, acquiesce in or consent to: (i) any change, modification or
alteration of the existing access to the Mortgaged Property; (ii) any change in
any private restrictive covenant, replat, easement, zoning law or other public
or private restriction, limiting or defining the uses which may be made of the
Mortgaged Property or any part thereof. If under applicable zoning provisions
the use of all or any portion of the Mortgaged Property is or shall become a
nonconforming use, Borrower will not cause or permit such nonconforming use to
be discontinued or abandoned without the express written consent of Lender.
10. Sale of Mortgaged Property or Change in Borrower.
(a) Borrower acknowledges that Lender has examined and relied on the
creditworthiness and experience of Borrower in agreeing to make the Loan secured
hereby, and that Lender has a valid interest in maintaining the value of the
Mortgaged Property so as to ensure that
MCF 415
Mortgage (AL)
Last revised 7/5/05
-10-
should Borrower default in the repayment of the Debt, Lender can recover the
Debt by a sale of the Mortgaged Property.
(b) Borrower may not Transfer (hereinafter defined) the Mortgaged
Property, nor allow any Change in Ownership (hereinafter defined), unless all of
the following conditions shall have been satisfied: (i) Lender has received
Borrower's written request for a Transfer, or for a Change in Ownership (or any
other request resulting in a new obligor under the Loan) and Lender shall have
expressly approved, in its sole discretion, such request in writing, subject to
the satisfaction of all requirements hereunder; (ii) no Event of Default has
occurred and is continuing; (iii) the proposed new owner/assignee of the
Mortgaged Property (the "New Borrower") meets all of Lender's Underwriting
Standards (hereinafter defined); (iv) the Mortgaged Property meets all of
Lender's Underwriting Standards related to its financial condition, cash flow,
operating income, physical condition, management and operation; (v) Borrower
provides Lender such other information and documentation reasonably required by
Lender, including without limitation, engineering reports, appraisals,
environmental reports and title endorsements; (vi) Borrower reimburses Lender
for all underwriting and other costs ("Underwriting Costs") incurred by Lender
in connection with such Transfer or Change in Ownership (including without
limitation, engineering and/or architect's fees, environmental studies, title
searches, credit checks, title endorsements, appraisal fees, attorney fees and
any costs associated with obtaining any REMIC Opinion or Rating Agency
No-Downgrade Letter (as such terms are hereinafter defined) required by Lender);
and (vii) Borrower remits to Lender both a reasonable administrative fee and an
assumption fee in the amount of one percent (1%) of the outstanding balance of
the Debt as of the date of such Transfer or Change in Ownership. Borrower shall
reimburse Lender for all Underwriting Costs incurred by Lender in connection
with any request for Lender's consent to a Transfer or a Change in Ownership,
whether or not any requested Transfer or Change in Ownership is approved or
consummated. A failure to comply with any of the terms of this paragraph 10
shall constitute an Event of Default, and Lender may then declare the entire
Debt immediately due and payable upon any such Transfer or Change in Ownership.
Lender shall not be required to demonstrate any actual impairment of its
security or any increased risk of default hereunder in order to so declare the
Debt immediately due and payable, or in denying any request for approval of a
Transfer or Change in Ownership. This provision shall apply to every Transfer or
Change in Ownership whether or not Lender has consented to any previous Transfer
or Change of Ownership.
(c) "Lender's Underwriting Standards" shall mean the actual commercial
loan underwriting standards used by PNC Bank, National Association, in
connection with its making of loans for the purpose of commercial
securitization, or any successor entity that is then servicing the Loan, in
effect at the time of the proposed Transfer or Change in Ownership, or, if no
such standards exist, such standards which are then customary for a commercial
lender in connection with the origination of a commercial mortgage loan, for the
purpose of securitization, of the size and type of Borrower's loan from Lender
secured hereby.
MCF 415
Mortgage (AL)
Last revised 7/5/05
-11-
(d) A "Transfer" is defined as any sale, conveyance, assignment,
alienation, mortgage, hypothecation, encumbrance, grant of a lien over or a
security interest in, pledge or other transfer of the Mortgaged Property or any
part thereof or interest therein, whether voluntary or involuntary. Without
limiting the generality of the foregoing, a Transfer is deemed to include: (i)
an installment sales agreement wherein Borrower agrees to sell the Mortgaged
Property or any part thereof for a price to be paid in installments; (ii) an
agreement by Borrower leasing all or a substantial part of the Mortgaged
Property for other than actual occupancy by a space tenant thereunder; or (iii)
a sale, assignment or other transfer of, or the grant of a security interest in,
Borrower's right, title and interest in and to any Leases or any Rents.
(e) A "Change in Ownership" shall occur: (i) when the ownership or
control of more than forty-nine percent (49%), in the aggregate, of the
applicable indicia of ownership or actual ownership interest in Borrower, any
Guarantor (hereinafter defined), or any Controlling Entity (hereinafter defined)
shall be vested in a party or parties who were not owners of such indicia of
ownership or actual ownership interest as of the closing of the Loan (1) by any
one or more voluntary or involuntary sales, conveyances, transfers, assignments,
mortgages, hypothecations, encumbrances, grants of liens over or security
interests in, or pledges of such indicia of ownership or actual ownership
interest or any interest therein, or (2) in one or a series of transactions
causing the creation or issuance of any additional indicia of ownership or
actual ownership interest; or (ii) upon the change, removal or resignation of a
managing member, general partner or similar controlling person or entity of
Borrower, any Guarantor or any Controlling Entity. The term "Controlling Entity"
shall mean any managing member, general partner or similar controlling entity in
Borrower or any Guarantor. Involuntary changes in ownership resulting from a
death or physical or mental disability shall not be considered a Change in
Ownership.
(f) A Change of Ownership shall not be deemed to have occurred when a
shareholder, member, partner or other person (for purposes of this paragraph,
each of the foregoing is called an "Estate Planning Transferor") possessing an
ownership interest in Borrower makes a one-time transfer (an "Estate Planning
Transfer") during the term of the Loan, of all or part of such ownership
interest for estate planning purposes to a trust or other entity for the benefit
of any of such person's spouse, children or grandchildren, or any of them (each,
a "Permitted Transferee"); provided, however, that any such Estate Planning
Transfer shall be subject to the following conditions:
(i) No Event of Default, and no event or condition that, with the
giving of notice or passage of time or both, would constitute an Event
of Default, shall exist on the date of the proposed Estate Planning
Transfer; and
(ii) No such Estate Planning Transfer shall in any event absolve
any Estate Planning Transferor, in whole or in part, from its
liability, if any, to Lender under the Note, this Security Instrument
or any Other Security Document; and
MCF 415
Mortgage (AL)
Last revised 7/5/05
-12-
(iii) Each applicable Permitted Transferee shall execute and
deliver to Lender an agreement, in a form acceptable to Lender in its
sole discretion, whereby such Permitted Transferee, upon the death of
the applicable Estate Planning Transferor, becomes jointly and
severally liable for the liability, if any, of such Estate Planning
Transferor to Lender under the Note, this Security Instrument or any
Other Security Documents; and
(iv) Lender has been paid a $3,500 administrative fee and all
out-of-pocket costs incurred by Lender (including, without limitation,
attorney fees) in affecting any Estate Planning Transfer; and
(v) Lender has determined that, from the date of the closing of
the loan to the date of the proposed Estate Planning Transfer, there
has been no material adverse change in the (a) financial condition of
the Estate Planning Transferor, and (b) financial or physical
condition of the Mortgaged Property.
An Estate Planning Transfer shall be effective only upon the date of
satisfaction of the last of such conditions to be satisfied. Lender shall have
the absolute and unconditional right to require reasonable evidence of the
satisfaction of each condition to an Estate Planning Transfer.
(g) Borrower shall be released from liability for the Debt only after:
(i) all conditions for a Transfer or Change in Ownership have been satisfied;
(ii) all security documents deemed necessary by Lender have been executed,
delivered, recorded and perfected; (iii) Lender has received a policy of title
insurance (or similar assurance) reflecting the new ownership and the priority
and perfection of Lender's security; (iv) the New Borrower has assumed all
required personal liability; and (v) all other reasonable requirements of Lender
are satisfied.
(h) Notwithstanding anything herein to the contrary, in connection
with any request for Lender's consent to a Transfer or Change in Ownership
subsequent to the conveyance of the Note to a real estate mortgage investment
conduit (a "REMIC"), within the meaning of Section 860D of the Internal Revenue
Code of 1986, as amended from time to time or any successor statute (the "Code")
or to another entity in connection with a Secondary Market Transaction
(hereinafter defined), Borrower acknowledges that Lender may require Borrower to
obtain and deliver to Lender other documentation evidencing that the proposed
Transfer or Change in Ownership will not (i) cause the then owner of the Note to
fail to qualify as a REMIC (a "REMIC Opinion"); and (ii) result in a
qualification, downgrade or withdrawal of any credit rating then in effect for
any securities or certificates issued by the then owner of the Note in
connection with a securitization which includes the Note (a "Rating Agency
No-Downgrade Letter").
11. Anti-Terrorism Laws.
MCF 415
Mortgage (AL)
Last revised 7/5/05
-13-
(a) Neither Borrower nor any of its affiliates is in violation of any
laws or regulations relating to terrorism or money laundering ("Anti-Terrorism
Laws"), including Executive Order No. 13224 on Terrorist Financing, effective
September 24, 2001 (the "Executive Order") and the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Public Law 107-56.
(b) Neither Borrower, any of its affiliates, or any of its brokers or
other agents acting or benefitting from the Loan is a Prohibited Person. A
"Prohibited Person" is any of the following:
(i) a person or entity that is listed in the Annex to, or is
otherwise subject to the provisions of, the Executive Order;
(ii) a person or entity owned or controlled by, or acting for or
on behalf of, any person or entity that is listed in the Annex to, or
is otherwise subject to the provisions of, the Executive Order;
(iii) a person or entity with whom any Lender is prohibited from
dealing or otherwise engaging in any transaction by any Anti-Terrorism
Law;
(iv) a person or entity who commits, threatens or conspires to
commit or supports "terrorism" as defined in the Executive Order; or
(v) a person or entity that is named as a "specially designated
national and blocked person" on the most current list published by the
U.S. Treasury Department Office of Foreign Asset Control at its
official website or any replacement website or other replacement
official publication of such list.
(c) Neither Borrower, any of its affiliates or any of its brokers or
other agents acting in any capacity in connection with the Loan (1) conducts any
business or engages in making or receiving any contribution of funds, goods or
services to or for the benefit of any Prohibited Person, (2) deals in, or
otherwise engages in any transaction relating to, any property or interests in
property blocked pursuant to the Executive Order, or (iii) engages in or
conspires to engage in any transaction that evades or avoids, or has the purpose
of evading or avoiding, or attempts to violate, any of the prohibitions set
forth in any Anti-Terrorism Law.
(d) Borrower shall not (1) conduct any business or engage in making or
receiving any contribution of funds, goods or services to or for the benefit of
any Prohibited Person, (ii) deal in, or otherwise engage in any transaction
relating to, any property or interests in property blocked pursuant to the
Executive Order or any other Anti-Terrorism Law, or (iii) engage in or conspire
to engage in any transaction that evades or avoids, or has the purpose of
evading or avoiding, or attempts to violate, any of the prohibitions set forth
in any Anti-Terrorism Law (and Borrower shall deliver to Lender any
certification or other evidence requested from time to time by any Lender in its
reasonable discretion, confirming Borrower's compliance herewith).
MCF 415
Mortgage (AL)
Last revised 7/5/05
-14-
12. Estoppel Certificates and No Default Affidavits.
(a) After request by Lender, Borrower shall within ten (10) business
days furnish Lender with a statement, duly acknowledged and certified by
Borrower, setting forth: (i) the amount of the original principal amount of the
Note; (ii) the unpaid principal amount of the Note; (iii) the rate of interest
of the Note; (iv) the date installments of interest and/or principal were last
paid; (v) any offsets or defenses to the payment of the Debt, if any; and (vi)
that the Note, this Security Instrument and the Other Security Documents are
valid, legal and binding obligations and have not been modified, or if modified,
giving particulars of such modification.
(b) Within ten (10) business days after request by Lender, Borrower
will furnish Lender with estoppel certificates, in form and content satisfactory
to Lender, from all tenants specified by Lender (other than tenants under Leases
for residential purposes, congregate care services or mini-warehouse storage
rentals where such storage rental is less than ten percent (10%) of the rentable
square footage of such storage facility (collectively "Residential Leases")). If
any tenant fails to provide such estoppel certificate, Borrower shall provide a
certificate with respect to the tenancy of such tenant, in form and substance
satisfactory to Lender.
13. Cooperation. Borrower acknowledges that Lender and its successors and
assigns may: (a) sell or assign this Security Instrument, the Note and any of
the Other Security Documents to one or more investors as a whole loan; (b) sell
or assign a participation interest in the Debt to one or more investors; (c)
deposit this Security Instrument, the Note and any of the Other Security
Documents with a trust, which trust may sell certificates to investors
evidencing an ownership interest in the trust assets; or (d) otherwise sell or
assign the Debt, the Note, this Security Instrument and any of the Other
Security Documents, or any interest therein to investors. The transactions
referred to in subparagraphs (a) through (d) above are hereinafter referred to
as "Secondary Market Transactions". Borrower shall cooperate in good faith with
Lender in effecting any such Secondary Market Transaction and in addressing such
matters as any party involved in a Secondary Market Transaction may require,
including the provision of such information and documents relating to Borrower,
any Guarantors, the Mortgaged Property and any tenants of the Improvements as
Lender may reasonably request in connection with a Secondary Market Transaction.
Lender shall have the right to provide to prospective investors any information
in its possession, including, without limitation, financial statements relating
to Borrower, any Guarantors, the Mortgaged Property and any tenant of the
Improvements. Borrower acknowledges that certain information regarding the Loan
and the parties thereto and the Mortgaged Property may be included in a private
placement memorandum, prospectus or other disclosure documents. Prior to or in
connection with a Secondary Market Transaction, Lender may assign or delegate
all or part of the responsibility for servicing the Loan to one or more loan
servicers. All references to Lender herein, in the Note or any other Security
Document, shall include all such loan servicers.
14. Books and Records; Reporting Requirements.
MCF 415
Mortgage (AL)
Last revised 7/5/05
-15-
(a) Borrower and Guarantor(s), if any, shall keep complete and
accurate books and records of account in accordance with generally accepted
accounting principles consistently applied. Borrower shall deliver, or cause to
be delivered, the reports and financial statements described below, all in form
acceptable to Lender (collectively the "Reports"), within the time period
required. Any required certification of such reports and financial statements
must be by the chief financial officer (or other person acceptable to Lender) of
Borrower or Guarantor, as applicable.
(i) Within thirty (30) days after the close of each fiscal year of
Borrower, Borrower shall deliver, or cause to be delivered to Lender: (A) a
certified current rent roll; (B) a certified annual operating statement of
the Mortgaged Property; and (C) a certified annual balance sheet and profit
and loss statement of Borrower. If the original principal amount of the
Loan was $20,000,000.00 or more, then all of the foregoing must be
delivered within sixty (60) days after the close of each fiscal year of
Borrower and must be audited by independent certified public accountants
acceptable to Lender.
(ii) Within thirty (30) days after the close of the separate
individual fiscal years of any Guarantor, Borrower shall deliver, or cause
to be delivered to Lender, a certified annual balance sheet and profit and
loss statement of each Guarantor, if any. If the original principal amount
of the Loan was $20,000,000.00 or more, then all of the foregoing must be
delivered within sixty (60) days after the close of each fiscal year of
Guarantor and must be audited by independent certified public accountants
acceptable to Lender.
(iii) Within thirty (30) days after the close of each calendar
quarter, Borrower shall deliver, or cause to be delivered to Lender the
following: (A) a certified current rent roll; (B) a certified quarterly
operating statement of the Mortgaged Property; (C) a certified quarterly
balance sheet and profit and loss statement of Borrower.
(iv) Within sixty (60) days after filing, Borrower shall deliver, or
cause to be delivered to Lender a certified copy of Borrower's tax return.
(b) Within thirty (30) days after the close of each fiscal year of
Borrower, Borrower shall deliver to Lender, for Lender's approval in its sole
discretion, a report (the "Leasing Report") setting forth the minimum economic
terms which Borrower proposes for use in connection with the standard lease form
for Leases of portions of the Mortgaged Property during the twelve month period
beginning upon such anniversary date. The terms set forth in the Leasing Report
shall reflect the prevailing market conditions for like properties in the
locality of the Mortgaged Property.
(c) In addition to the other requirements of this paragraph 14, until
such time as the Note is transferred to a REMIC or to another entity in
connection with a securitization including the Note, Borrower shall deliver, or
cause to be delivered to Lender, within ten (10) days after the
MCF 415
Mortgage (AL)
Last revised 7/5/05
-16-
close of each calendar month, a current certified rent roll and certified
monthly (on a trailing 12 month basis) and annual year to date income statements
of the Mortgaged Property.
(d) Borrower shall supplement the required Reports and Leasing Reports
and provide such other financial information in respect of Borrower, any
Guarantor and the Mortgaged Property as Lender, from time to time, may request.
Borrower acknowledges that, without timely delivery of complete and accurate
Reports and Leasing Reports, Lender may not be able to execute a Secondary
Market Transaction. Borrower agrees that failure to timely deliver any of the
Reports or the Leasing Reports shall be an Event of Default hereunder.
15. Performance of Other Agreements. Borrower shall observe and perform
each and every term to be observed or performed by Borrower pursuant to the
terms of any agreement or recorded instrument affecting or pertaining to the
Mortgaged Property.
16. Further Acts, Etc. Borrower will, at Borrower's cost, complete and
deliver any such further acts or documents required by Lender, from time to
time, to correct errors in the documenting of the Loan or to better assure,
convey, assign, transfer, perfect or confirm unto Lender the property and rights
intended to be given it in this Security Instrument, the Note or any Other
Security Document. Borrower grants to Lender an irrevocable power of attorney
coupled with an interest for the purpose of exercising and perfecting any and
all rights and remedies available to Lender under the Note, this Security
Instrument, the Other Security Documents, at law or in equity, including without
limitation the rights and remedies described in this paragraph.
17. Recording of Security Instrument, Etc. Except where otherwise
prohibited by law, Borrower will pay all filing, registration or recording fees,
and all expenses incident to the preparation, execution, acknowledgment, and
subsequent release or reconveyance of this Security Instrument and the Note, any
deed of trust or mortgage supplemental hereto, any security instrument with
respect to the Mortgaged Property, any instrument of further assurance and all
federal, state, county and municipal, taxes, duties, impositions, assessments
and charges arising out of or in connection with the same. BORROWER SHALL HOLD
HARMLESS AND INDEMNIFY LENDER, ITS SUCCESSORS AND ASSIGNS, AGAINST ANY LIABILITY
INCURRED BY REASON OF THE IMPOSITION OF ANY TAX ON THE MAKING AND RECORDING OF
THIS SECURITY INSTRUMENT.
18. Events of Default. The Debt shall become immediately due and payable at
the option of Lender, without notice or demand, upon the occurrence of any one
or more of the following events (each an "Event of Default"):
(a) if Borrower fails to make the full and punctual payment of any
amount payable pursuant to this Security Instrument, the Note or any Other
Security Document, which failure is not cured on or before the fifth (5th) day
after written notice from Lender to Borrower of such failure;
MCF 415
Mortgage (AL)
Last revised 7/5/05
-17-
(b) if Borrower fails to pay the entire outstanding principal balance
of the Note, together with all accrued and unpaid interest, on the date when
due, whether on the Maturity Date (as defined in the Note), or upon
acceleration, or on the Prepayment Date (as defined in the Note);
(c) if Borrower fails to make the full and punctual payment of Taxes
or Other Charges as required hereby;
(d) if Borrower fails to keep the Policies of insurance required
hereby in full force and effect, or fails to promptly deliver copies thereof to
Lender upon request;
(e) if a Transfer or a Change in Ownership occurs in violation of the
provisions of this Security Instrument, or if Borrower violates or does not
comply with the provisions of the Assignment of Leases;
(f) if any representation or warranty of Borrower or any Guarantor
made herein, in any guaranty or indemnity or in any certificate, report,
financial statement or other instrument or document furnished to Lender shall
have been false or misleading in any material respect when made;
(g) if Borrower shall make an assignment for the benefit of creditors
or if Borrower is not paying debts as and when the same become due;
(h) if a receiver, liquidator or trustee of Borrower shall be
appointed or if Borrower is adjudicated bankrupt or insolvent, or if any
petition for bankruptcy, reorganization or arrangement pursuant to federal
bankruptcy law, or any similar federal or state law, shall be filed by or
against, consented to, or acquiesced in by, Borrower or if any proceeding for
the dissolution or liquidation of Borrower shall be instituted; however, if such
appointment, adjudication, petition or proceeding was involuntary and not
consented to by Borrower, then upon the same not being discharged, stayed or
dismissed within sixty (60) days;
(i) if Borrower shall be in default under any other deed of trust,
mortgage or security agreement whether it be superior or junior in priority to
this Security Instrument (it not being implied by this clause that any such
encumbrance will be permitted);
(j) if the Mortgaged Property becomes subject to any mechanic's,
materialman's or other lien (other than a lien for local real estate taxes and
assessments not then due and payable, or any lien being contested by Borrower
pursuant to its rights hereunder) and such lien shall remain undischarged of
record (by payment, bonding or otherwise) for a period of thirty (30) calendar
days;
(k) the expiration, dismissal or final adjudication of any appeal
rights of Borrower in connection with any judgment entered against it in excess
of $100,000.00 which is not fully covered by insurance (other than Borrower's
deductible, if any);
MCF 415
Mortgage (AL)
Last revised 7/5/05
-18-
(l) if Borrower fails to promptly and diligently cure any material
violations of laws or ordinances affecting the Mortgaged Property; or
(m) if for more than thirty (30) days after written notice from
Lender, Borrower shall fail to perform any other term, covenant or condition of
the Note, this Security Instrument or any of the Other Security Documents;
provided, however, that if such failure to perform is of a type which cannot be
cured within such thirty (30) day period and Borrower diligently commences and
prosecutes such cure, Lender shall allow a reasonable additional time period
(not to exceed sixty (60) additional days) to complete such cure.
19. Right to Cure Defaults. Upon the occurrence of any Event of Default, or
if Borrower fails to make any payment or to do any act as herein required,
Lender may do such acts or make such payments in Borrower's stead, in such
manner and to the extent that Lender may deem necessary to protect the security
hereof. Any such acts or payments by Lender shall be at Lender's sole
discretion, may be taken without notice to or demand on Borrower, and will not
release Borrower from any obligation hereunder. Lender is authorized to enter
upon the Mortgaged Property for such purposes, or appear in, defend or bring any
action or proceeding to protect its interest in the Mortgaged Property, to cause
this Security Instrument to be foreclosed or to collect the Debt. All such costs
and expenses (including attorney fees) incurred by Lender in remedying any such
Event of Default, in acting or making payments in Borrower's stead, or in
appearing in, defending or bringing any of the foregoing actions or proceedings,
shall bear interest at the Default Rate from the date incurred by Lender until
the date of payment to Lender. All such costs and expenses incurred by Lender
together with interest thereon calculated at the above rate shall be deemed to
constitute a portion of the Debt and be secured by this Security Instrument and
the Other Security Documents and shall be immediately due and payable upon
demand by Lender therefor.
20. Lender's Remedies.
(a) Upon the occurrence of any Event of Default, Lender may take such
action, without notice or demand, as it deems advisable to protect and enforce
its rights against Borrower and in and to the Mortgaged Property, including,
without limitation, the following actions:
(i) declare the entire Debt to be immediately due and payable;
(ii) sell the Mortgaged Property at public outcry, in front of
the courthouse door of the county wherein the Mortgaged Property is located, to
the highest bidder for cash, either in person or by auctioneer, after first
giving notice of the time, place and terms of such sale by publication once a
week for three successive weeks, in a newspaper published in said county, and,
upon the payment of the purchase money, the person conducting said sale for
Lender is authorized and empowered to execute to the purchaser at said sale, a
deed to the Mortgaged Property so purchased in the name and on behalf of
Borrower, and the certificate of the Lender appointing said auctioneer to make
such sale, shall be prima facie evidence of his authority in the premises. At
the foreclosure sale, the Mortgaged Property may be offered for sale and sold as
a
MCF 415
Mortgage (AL)
Last revised 7/5/05
-19-
whole without first offering it in any manner or may be offered for sale and
sold in any other manner Lender may elect. The proceeds of any foreclosure sale
shall be applied as follows: (a) First, to the expenses of making the sale,
including a reasonable attorney's fee for such services as may be necessary in
the collection of the Debt or the foreclosure of this Security Instrument; (b)
Second to the repayment of any money, with interest thereon, which Lender may
have paid, or become eligible to pay, or which it may then be necessary to pay
for taxes, insurance, assessments or like charges, liens, or debts, as
hereinabove provided; (c) Third, to the payment and satisfaction of the Debt
secured hereby with interest to the date of sale; and (d) Fourth, the balance,
if any, shall be paid to those entitled by law to receive the same, after
deducting any expense of ascertaining who is entitled to receive the same. At
the option of the Lender, this Security Instrument may be foreclosed as provided
by law or in equity in which event, a reasonable attorney's fee shall, among
other costs and expenses, be allowed and paid out of the proceeds of the sale;
(iii) with or without entry, to the extent permitted and pursuant
to the procedures provided by applicable law, institute proceedings for the
partial foreclosure of this Security Instrument for the portion of the Debt then
due and payable, subject to the continuing lien of this Security Instrument for
the balance of the Debt not then due;
(iv) institute an action, suit or proceeding in equity for the
specific performance of any covenant, condition or agreement contained herein,
in the Note or the Other Security Documents;
(v) recover judgment on the Note either before, during or after
any proceedings for the enforcement of this Security Instrument;
(vi) apply for the appointment of a trustee, receiver, liquidator
or conservator of the Mortgaged Property, without notice and without regard for
the adequacy of the security for the Debt or the solvency of Borrower, any
Guarantor or of any person, firm or other entity liable for the payment of the
Debt;
(vii) enforce Lender's interest in the Leases and Rents and enter
into or upon the Mortgaged Property, either personally or by its agents,
nominees or attorneys and dispossess Borrower and its agents and servants
therefrom, and thereupon Lender may: (A) use, operate, manage, control, insure,
maintain, repair, restore and otherwise deal with all and every part of the
Mortgaged Property and conduct the business thereat; (B) complete any
construction on the Mortgaged Property in such manner and form as Lender deems
advisable; (C) make alterations, additions, renewals, replacements and
improvements to or on the Mortgaged Property; (D) exercise all rights and powers
of Borrower with respect to the Mortgaged Property, whether in the name of
Borrower or otherwise, including, without limitation, the right to make, cancel,
enforce or modify Leases, obtain and evict tenants, and demand, xxx for, collect
and receive all earnings, revenues, rents, issues, profits and other income of
the Mortgaged Property and every part thereof; and (E) apply the receipts from
the Mortgaged Property to the payment of the Debt, after deducting therefrom all
expenses (including reasonable attorney fees) incurred in connection with the
aforesaid operations and all amounts necessary to pay the Taxes, assessments,
Insurance Premiums and Other Charges in connection with the Mortgaged Property,
as well as just and reasonable compensation for the services of Lender, its
counsel, agents and employees; or
(viii) pursue such other rights and remedies as may then be
available at law and in equity. To the extent permitted presently or in the
future by laws of the state in which the Premises and Improvements are located,
Lender may institute a proceeding or proceedings, judicial, or nonjudicial, by
advertisement or otherwise, for the complete or partial foreclosure of this
Security Instrument or the complete or partial sale of the Mortgaged Property
under a power of sale which power is hereby granted to Lender.
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-20-
In the event of a sale, by foreclosure or otherwise, of less than all
of the Mortgaged Property, this Security Instrument shall continue as a lien on
the remaining portion of the Mortgaged Property.
(b) Upon the completion of any sale or sales made under or by virtue
of this Security Instrument, the person conducting the said sale for Lender
shall execute and deliver to the purchaser or purchasers a good and sufficient
instrument, or good and sufficient instruments, conveying, assigning and
transferring all estate, right, title and interest in and to the property and
rights sold. Lender is hereby irrevocably appointed the true and lawful attorney
of Borrower, in its name and stead, to make all necessary conveyances,
assignments, transfers and deliveries of the Mortgaged Property and rights so
sold, and for that purpose Lender may execute all necessary instruments of
conveyance, assignment and transfer, and may substitute one or more persons with
like power, Borrower hereby ratifying and confirming all that Lender shall
lawfully do by virtue hereof. Any such sale or sales made under or by virtue of
this Security Instrument pursuant to any judicial proceedings or any judgment or
decree of foreclosure and sale, shall operate to divest all the estate, right,
title, interest, claim and demand whatsoever, whether at law or in equity, of
Borrower in and to the properties and rights so sold, and shall be a perpetual
bar both at law and in equity against Borrower and against any and all persons
claiming or who may claim the same, or any part thereof from, through or under
Borrower.
(c) Upon any sale made under or by virtue of this Security Instrument
pursuant to any judicial proceedings or any judgment or decree of foreclosure
and sale, Lender may bid for and acquire the Mortgaged Property or any part
thereof and in lieu of paying cash therefor may make settlement for the purchase
price by crediting upon the Debt the net sales price after deducting therefrom,
to the extent allowed by applicable law, the expenses of the sale and costs of
the action and any other sums which Lender is authorized to deduct under this
Security Instrument.
(d) No recovery of any judgment by Lender and no levy of an execution
under any judgment upon the Mortgaged Property or upon any other property of
Borrower shall affect in any manner or to any extent the lien of this Security
Instrument upon the Mortgaged Property or any part thereof, or any liens,
rights, powers or remedies of Lender hereunder, but such liens, rights, powers
and remedies of Lender shall continue unimpaired as before.
(e) Lender may release, regardless of consideration and without the
necessity for any notice to or a consent by any person or entity, any part of
the Mortgaged Property without, as to the remainder, in any way impairing,
affecting, subordinating or releasing the lien or security interests created in
or evidenced by this Security Instrument or the Other Security Documents or
their stature as a first and prior liens and security interests in and to the
Mortgaged Property. For payment of the Debt, Lender may resort to any security
in such order and manner as Lender may elect.
(f) Lender shall have all rights, remedies and recourses granted in
this Security Instrument and the Other Security Documents or available at law or
equity (including the Uniform Commercial Code), which rights: (i) shall be
cumulative and concurrent; (ii) may be pursued separately, successively or
concurrently against Borrower or others obligated under the Note, this Security
Instrument and the Other Security Documents, or against the Mortgaged Property,
or against any one or more of them, at the sole discretion of Lender; (iii) may
be exercised as often as occasion therefore shall arise and exercise or failure
to exercise any of them shall not be construed as a waiver or release thereof or
of any other right, remedy or recourse; and (iv) are intended to be, and shall
be, nonexclusive. No enforcement of any rights, remedies or
MCF 415
Mortgage (AL)
Last revised 7/5/05
-21-
recourse under the Note, this Security Instrument and the Other Security
Documents or otherwise at law or equity shall be deemed to cure any Event of
Default. The remedies provided for in this Security Instrument may be exercised
in any order.
21. Changes in the Laws Regarding Taxation. If any law is enacted or
adopted or amended after the date of this Security Instrument which imposes a
tax, either directly or indirectly, on the Debt or Lender's interest in the
Mortgaged Property, Borrower will pay such tax, with interest and penalties
thereon, if any. In the event Lender is advised by counsel chosen by it that the
payment of such tax or interest and penalties by Borrower would be unlawful or
taxable to Lender or unenforceable or provide the basis for a defense of usury,
then in any such event, Lender shall have the option, by written notice of not
less than ninety (90) days, to declare the entire Debt immediately due and
payable; provided, however, that no Prepayment Consideration shall be required
solely as a result of a prepayment required by any such declaration.
22. Documentary Stamps. If at any time the United States of America, any
state thereof or any subdivision of any such state shall require revenue or
other stamps to be affixed to the Note or this Security Instrument, or impose
any other tax or charge on the same, Borrower will pay for the same, with
interest and penalties thereon, if any.
23. Usury Laws. This Security Instrument, the Other Security Documents and
the Note are subject to the express condition that at no time shall Borrower be
obligated or required to pay interest on the Debt or any other charges at a rate
which could subject Lender to either civil or criminal liability as a result of
being in excess of the maximum interest rate which Borrower is permitted by law
to contract or agree to pay. If by the terms of this Security Instrument, the
Other Security Documents or the Note, Borrower is at any time required or
obligated to pay any such amounts at a rate in excess of such maximum rate, the
rate of interest under the Note shall be deemed to be immediately reduced to
such maximum rate and the interest payable shall be computed at such maximum
rate and all previous payments in excess of such maximum rate shall be deemed to
have been payments in reduction of the principal and not on account of the
interest due hereunder.
24. Right of Entry. Lender and its agents shall have the right to enter and
inspect the Mortgaged Property at all reasonable times.
25. Reasonable Use and Occupancy. In addition to the rights which Lender
may have herein, upon the occurrence of any Event of Default, Lender, at its
option, may require Borrower to pay monthly in advance to Lender, or any
receiver appointed to collect the Rents, the fair and reasonable rental value
for the use and occupation of such part of the Mortgaged Property as may be
occupied by Borrower, or may require Borrower to vacate and surrender possession
of the Mortgaged Property to Lender or to such receiver and, in default thereof,
Borrower may be evicted by summary proceedings or otherwise.
26. Security Agreement. This Security Instrument is both a real property
mortgage and a "security agreement" within the meaning of the Uniform Commercial
Code adopted and enacted by the state or states where any of the Mortgaged
Property is located (the "Uniform Commercial Code"), made by and between
Borrower, as debtor, and Lender, as secured party. Borrower hereby grants to
Lender, as security for the Debt, a security interest in the Mortgaged Property
to the full extent that the Mortgaged Property may be subject to the Uniform
Commercial Code (said portion of the Mortgaged Property so subject to the
Uniform Commercial Code being herein referred to as the "Collateral"). If an
Event of Default shall occur, Lender, in addition to any other rights and
remedies which it may have, shall have and may exercise immediately and without
demand any and all rights and remedies granted to a secured party upon default
under the Uniform Commercial Code, including, without limiting the generality of
the foregoing, the right to take possession of
MCF 415
Mortgage (AL)
Last revised 7/5/05
-22-
the Collateral or any part thereof, and to take such other measures as Lender
may deem necessary for the care, protection and preservation of the Collateral.
Upon request or demand of Lender, Borrower shall at its expense assemble the
Collateral and make it available to Lender at a convenient place acceptable to
Lender. Borrower shall pay to Lender on demand any and all expenses, including
legal expenses and attorney fees, incurred or paid by Lender in protecting the
interest in the Collateral and in enforcing Lender's rights hereunder with
respect to the Collateral. Any notice of sale, disposition or other intended
action by Lender with respect to the Collateral sent to Borrower in accordance
with the provisions hereof at least five (5) days prior to such action, shall
constitute commercially reasonable notice to Borrower. The Collateral may be
sold in such manner, portions, order or parcels as Lender may determine, with or
without having first taken possession of same. The right of sale arising out of
any Event of Default shall not be exhausted by any one or more sales or
attempted sales, any other action, proceeding, or other exercise of a remedy,
and the liens granted by this Security Instrument shall continue unimpaired. The
proceeds of any disposition of the Collateral, or any part thereof, may be
applied by Lender to the payment of the Debt in such priority and proportions as
Lender in its discretion shall deem proper.
27. Actions and Proceedings. Lender has the right to appear in and defend
any action or proceeding brought with respect to the Mortgaged Property and to
bring any action or proceeding, in the name and on behalf of Borrower, which
Lender, in its discretion, decides should be brought to protect its interest in
the Mortgaged Property. Lender shall, at its option, be subrogated to the lien
of any deed of trust, mortgage or other security instrument discharged in whole
or in part by the Debt, and any such subrogation rights shall constitute
additional security for the payment of the Debt.
28. Waiver of Counterclaim and Trial By Jury. Borrower hereby waives the
right to assert a counterclaim, other than a mandatory or compulsory
counterclaim, in any action or proceeding brought against it by Lender, and, to
the extent permitted by law, waives trial by jury in any action or proceeding
brought by either party hereto against the other or in any counterclaim asserted
by Lender, or its successors or assigns, against Borrower, or in any matters
whatsoever arising out of or in any way connected with this Security Instrument,
the Note, any of the Other Security Documents or the Debt.
29. Recovery of Sums Required to Be Paid. Lender shall have the right from
time to time to take action to recover any sum or sums which constitute a part
of the Debt as the same become due, without regard to whether or not the balance
of the Debt shall be due, and without prejudice to the right of Lender
thereafter to bring an action of foreclosure, or any other action, for a default
or defaults by Borrower existing at the time such earlier action was commenced.
30. Marshalling and Other Matters. Borrower hereby waives, to the extent
permitted by law, the benefit of all appraisement, valuation, stay, extension,
reinstatement, redemption and similar laws now or hereafter in force and all
rights of marshalling in the event of any sale hereunder of the Mortgaged
Property or any part thereof or any interest therein. Further, Borrower hereby
expressly waives any and all rights of redemption from sale under any order or
decree of foreclosure of this Security Instrument on behalf of Borrower, and on
behalf of each and every person acquiring any interest in or title to the
Mortgaged Property subsequent to the date of this Security Instrument and on
behalf of all persons to the extent permitted by applicable law.
31. Costs and Expenses. Without limiting Lender's rights under any other
provision herein or in the Note or any Other Security Document, Borrower agrees
that it will reimburse Lender for any and all costs and expenses incurred by
Lender in connection with any breach or default of this Security Instrument, the
Note
MCF 415
Mortgage (AL)
Last revised 7/5/05
-23-
or any Other Security Document, or in connection with any request that Lender
take, or refrain from taking, any action with respect to Borrower or the
Mortgaged Property.
32. Access Laws.
(a) Borrower agrees that the Mortgaged Property shall at all times
comply with the requirements of the Americans with Disabilities Act of 1990, the
Fair Housing Amendments Act of 1988, all similar state and local laws and
ordinances related to access and all rules, regulations, and orders issued
pursuant thereto including, without limitation, the Americans with Disabilities
Act Accessibility Guidelines for Buildings and Facilities (collectively the
"Access Laws").
(b) Notwithstanding any provisions set forth herein or in any other
document regarding Lender's approval of alterations of the Mortgaged Property,
Borrower shall not alter the Mortgaged Property in any manner which would
increase Borrower's responsibilities for compliance with the applicable Access
Laws without the prior written approval of Lender. The foregoing shall apply to
tenant improvements constructed by Borrower or by any of its tenants. Lender may
condition any such approval upon receipt of a certificate of an architect,
engineer or other person acceptable to Lender regarding compliance with
applicable Access Laws.
(c) Borrower agrees to give prompt notice to Lender of the receipt by
Borrower of any complaints related to any violations of any Access Laws and of
the commencement of any proceedings or investigations which relate to compliance
with applicable Access Laws.
33. Indemnification. BORROWER SHALL PROTECT, DEFEND, INDEMNIFY AND SAVE
HARMLESS LENDER FROM AND AGAINST ALL LIABILITIES, OBLIGATIONS, CLAIMS, DEMANDS,
DAMAGES, PENALTIES, CAUSES OF ACTION, LOSSES, FINES, COSTS AND EXPENSES
(INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEY FEES AND EXPENSES) (THE
"INDEMNIFIED OBLIGATIONS"), IMPOSED UPON, INCURRED BY OR ASSERTED AGAINST LENDER
BY REASON OF: (A) OWNERSHIP OF THIS SECURITY INSTRUMENT, THE MORTGAGED 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
MORTGAGED PROPERTY OR ANY PART THEREOF OR ON THE ADJOINING SIDEWALKS, CURBS,
ADJACENT PROPERTY OR ADJACENT PARKING AREAS, STREETS OR WAYS; (C) ANY USE,
NON-USE OR CONDITION IN, ON OR ABOUT THE MORTGAGED PROPERTY OR ANY PART THEREOF
OR ON ADJOINING SIDEWALKS, CURBS, ADJACENT PROPERTY OR ADJACENT PARKING AREAS,
STREETS OR WAYS; (D) PERFORMANCE OF ANY LABOR OR SERVICES OR THE FURNISHING OF
ANY MATERIALS OR OTHER PROPERTY IN RESPECT OF THE MORTGAGED PROPERTY OR ANY PART
THEREOF; (E) ANY FAILURE OF THE MORTGAGED PROPERTY TO COMPLY WITH ANY ACCESS
LAWS. ANY AMOUNTS PAYABLE TO LENDER BY REASON OF THE APPLICATION OF THIS
INDEMNIFICATION SHALL BE SECURED BY THIS SECURITY INSTRUMENT AND THE OTHER
SECURITY DOCUMENTS, SHALL BECOME IMMEDIATELY DUE AND PAYABLE AND SHALL BEAR
INTEREST AT THE DEFAULT RATE FROM THE DATE LOSS OR DAMAGE IS SUSTAINED BY LENDER
UNTIL PAID. The obligations and liabilities of Borrower under this paragraph
shall survive any termination, satisfaction or assignment of this Security
Instrument and the exercise by Lender of any of its rights or remedies
hereunder, including, but not limited to, the acquisition of the Mortgaged
Property by foreclosure or a conveyance in lieu of foreclosure. The foregoing
indemnification shall not relate to Indemnified Obligations arising from
Lender's gross negligence or willful misconduct.
MCF 415
Mortgage (AL)
Last revised 7/5/05
-24-
34. Notices. Except as otherwise specified herein, any notice, consent,
request or other communication required or permitted hereunder shall be in
writing and shall be deemed properly given if delivered in accordance with the
notice requirements contained in the Note.
35. Authority.
(a) Borrower (and the undersigned representative of Borrower, if any)
has full power, authority and right to execute, deliver and perform its
obligations pursuant to this Security Instrument, and to mortgage, give, grant,
bargain, sell, alienate, convey, confirm, pledge, hypothecate and assign the
Mortgaged Property pursuant to the terms hereof and to keep and observe all of
the terms of this Security Instrument on Borrower's part to be performed.
(b) Borrower represents and warrants that Borrower is not a "foreign
person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of
1986, as amended, and the related Treasury Department regulations, including
temporary regulations.
36. Waiver of Notice. Borrower shall not be entitled to any notices of any
nature whatsoever from Lender except with respect to matters for which this
Security Instrument specifically and expressly provides for the giving of notice
by Lender to Borrower and except with respect to matters for which Lender is
required by applicable law to give notice, and Borrower hereby expressly waives
the right to receive any other notice.
37. Remedies of Borrower. In the event that a claim or adjudication is made
that Lender has acted unreasonably or unreasonably delayed acting in any case
where by law or under the Note, this Security Instrument or the Other Security
Documents, it has an obligation to act reasonably or promptly, Lender shall not
be liable for any monetary damages, and Borrower's remedies shall be limited to
injunctive relief or declaratory judgment.
38. Sole Discretion of Lender. Wherever pursuant to this Security
Instrument, Lender exercises any right given to it to approve or disapprove, or
any arrangement or term is to be satisfactory to Lender, the decision of Lender
to approve or disapprove or to decide that arrangements or terms are
satisfactory or not satisfactory shall be in the sole and absolute discretion of
Lender and shall be final and conclusive, except as may be otherwise expressly
and specifically provided herein.
39. Nonwaiver. The failure of Lender to insist upon strict performance of
any term hereof shall not be deemed to be a waiver of any term of this Security
Instrument. Borrower shall not be relieved of Borrower's obligations hereunder
by reason of: (a) the failure of Lender to comply with any request of Borrower
or any Guarantor to take any action to foreclose this Security Instrument or
otherwise enforce any of the provisions hereof, of the Note or the Other
Security Documents; (b) the release, regardless of consideration, of the whole
or any part of the Mortgaged Property, or of any person liable for the Debt or
any portion thereof; or (c) any agreement or stipulation by Lender extending the
time of payment or otherwise modifying or supplementing the terms of the Note,
this Security Instrument or the Other Security Documents. Lender may resort for
the payment of the Debt to any other security held by Lender in such order and
manner as Lender, in its discretion, may elect. Lender may take action to
recover the Debt, or any portion thereof, or to enforce any covenant hereof
without prejudice to the right of Lender thereafter to foreclose this Security
Instrument. The rights and remedies of Lender under this Security Instrument and
the Other Security Documents shall be
MCF 415
Mortgage (AL)
Last revised 7/5/05
-25-
separate, distinct and cumulative and none shall be given effect to the
exclusion of the others. No act of Lender shall be construed as an election to
proceed under any one provision herein to the exclusion of any other provision.
Lender shall not be limited exclusively to the rights and remedies herein stated
but shall be entitled to every right and remedy now or hereafter afforded at law
or in equity.
40. Waiver of Automatic or Supplemental Stay. In the event of the filing of
any voluntary or involuntary petition under the Bankruptcy Code by or against
Borrower (other than an involuntary petition filed by or joined by Lender),
Borrower shall not assert, or request any other party to assert, that the
automatic stay under Section 362 of the Bankruptcy Code shall operate or be
interpreted to stay, interdict, condition, reduce or inhibit the ability of
Lender to enforce any rights it has by virtue of this Security Instrument, or
any other rights that Lender has, whether now or hereafter acquired, against any
Guarantor. Further, Borrower shall not seek a supplemental stay or any other
relief, whether injunctive or otherwise, pursuant to Section 105 of the
Bankruptcy Code or any other provision therein to stay, interdict, condition,
reduce or inhibit the ability of Lender to enforce any rights it has by virtue
of this Security Instrument against any Guarantor. The waivers contained in this
paragraph are a material inducement to Lender's willingness to make the Loan,
and Borrower acknowledges and agrees that no grounds exist for equitable relief
which would bar, delay or impede the exercise by Lender of its rights and
remedies against Borrower or any Guarantor.
41. Bankruptcy Acknowledgment. In the event the Mortgaged Property or any
portion thereof or interest therein becomes property of any bankruptcy estate or
subject to any state or federal insolvency proceeding, then Lender shall
immediately become entitled, in addition to all other relief to which Lender may
be entitled under this Security Instrument, to obtain: (a) an order from the
Bankruptcy Court or other appropriate court granting immediate relief from any
automatic stay laws (including Section 362 of the Bankruptcy Code) so to permit
Lender to pursue its rights and remedies against Borrower as provided under this
Security Instrument and all other rights and remedies of Lender at law and in
equity under applicable state law; and (b) an order from the Bankruptcy Court
prohibiting Borrower's use of all "cash collateral" as defined under Section 363
of the Bankruptcy Code. In connection with any such orders, Borrower shall not
contend or allege in any pleading or petition that Lender does not have
sufficient grounds for relief from the automatic stay. Any bankruptcy petition
or other action taken by Borrower to stay, condition, or inhibit Lender from
exercising its remedies are hereby admitted by Borrower to be in bad faith and
Borrower further admits that Lender would have just cause for relief from the
automatic stay in order to take such actions authorized by state law.
42. No Oral Change. This Security Instrument, and any provisions hereof,
may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Borrower or
Lender, but only by an agreement in writing signed by the party against whom
enforcement of any modification, amendment, waiver, extension, change, discharge
or termination is sought.
43 Liability. If Borrower consists of more than one person, the obligations
and liabilities of each such person hereunder shall be joint and several. This
Security Instrument shall be binding upon and inure to the benefit of Borrower
and Lender and their respective successors and assigns forever.
44. Inapplicable Provisions. If any term, covenant or condition of the
Note, this Security Instrument or any Other Security Document is held to be
invalid, illegal or unenforceable in any respect, the Note, this Security
Instrument and any such Other Security Document shall be construed without such
provision.
MCF 415
Mortgage (AL)
Last revised 7/5/05
-26-
45. Headings, Etc. The headings and captions of various paragraphs of this
Security Instrument are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
46. Counterparts. This Security Instrument may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same Security Instrument.
47. Definitions. Unless the context clearly indicates a contrary intent or
unless otherwise specifically provided herein, words used in this Security
Instrument (including pronouns) shall include the corresponding masculine,
feminine or neuter forms, and the singular form such words shall include the
plural and vice versa. The word "Borrower" shall mean "each Borrower and any
subsequent owner or owners of the Mortgaged Property or any part thereof or any
interest therein"; the word "Lender" shall mean "Lender and any subsequent
holder of the Note"; the word "Note" shall mean "the Note and any other evidence
of indebtedness secured by this Security Instrument"; the word "person" shall
include an individual, corporation, partnership, limited partnership, limited
liability partnership, limited liability company, trust, unincorporated
association, government, governmental authority and any other entity; and the
words "Mortgaged Property" shall include any portion of the Mortgaged Property
and any interest therein. Additionally, the word "Guarantor" shall mean any
person or entity guaranteeing or indemnifying payment of the Debt or any portion
thereof or performance by Borrower of any of the terms of this Security
Instrument, the Note or the Other Security Documents, including, without
limitation, any person or entity executing the Non-Recourse Indemnification
Agreement delivered to Lender in connection with the Loan.
48. Homestead. Borrower hereby waives and renounces all homestead and
exemption rights provided by the constitution and the laws of the United States
and of any state, in and to the Mortgaged Property as against the collection of
the Debt, or any part hereof.
49. Assignments. Lender shall have the right to assign or transfer its
rights under this Security Instrument without limitation. Any assignee or
transferee shall be entitled to all the benefits afforded Lender under this
Security Instrument.
50. Exculpation. Notwithstanding anything to the contrary contained in this
Security Instrument, the liability of Borrower for the payment of the Debt and
for the performance of the other agreements, covenants and obligations contained
herein, in the Note or in any of the Other Security Documents shall be limited
as set forth in Paragraph 12 of the Note.
51. Integration. This Security Instrument, the Note and the Other Security
Documents embody the entire agreement by and between Borrower and Lender with
respect to the Loan, and any and all prior correspondence, discussions or
negotiations are deemed merged therein; provided, however, that except to the
extent inconsistent with the specific terms and provisions of this Security
Instrument, the Note and the Other Security Documents, all representations,
warranties, statements, covenants and agreements of Borrower contained in any
loan commitment and/or loan application executed in connection with the Loan
shall survive the funding of the Loan, any termination, satisfaction, or
assignment of this Security Instrument and the exercise by Lender of any of its
rights or remedies hereunder, including but not limited to, the acquisition of
the Mortgaged Property by foreclosure or a conveyance in lieu of foreclosure.
MCF 415
Mortgage (AL)
Last revised 7/5/05
-27-
52. Applicable Law; Jurisdiction. This Security Instrument shall be
governed and construed in accordance with the laws of the state in which the
Premises and Improvements encumbered by this Security Instrument are located.
Borrower hereby submits to personal jurisdiction in the state courts located in
said state and the federal courts of the United States of America located in
said state for the enforcement of Borrower's obligations hereunder and waives
any and all personal rights under the law of any other state to object to
jurisdiction within such state for the purposes of any action, suit, proceeding
or litigation to enforce such obligations of Borrower.
53. Single Purpose Entity.
(a) Until the Debt has been paid in full to Lender, Borrower's
organizational documents will provide that Borrower's sole business purpose
shall be the acquisition, ownership and operation of the Mortgaged Property.
Borrower shall at all times during the term of the Note conduct its business
affairs in compliance with such organizational documents. In addition, Borrower
represents and warrants to, and covenants and agrees with Lender that Borrower
has not and shall not: (i) engage in any business or activity other than the
ownership, operation and maintenance of the Mortgaged Property, and activities
incidental thereto; (ii) acquire or own any material assets other than (A) the
Mortgaged Property, and (B) such incidental personal property as may be
necessary for the operation of the Mortgaged Property; (iii) merge into or
consolidate with any person or entity or dissolve, terminate or liquidate in
whole or in part, transfer or otherwise dispose of all or substantially all of
its assets or change its legal structure, without in each case Lender's prior
written consent; (iv) fail to preserve its existence as an entity duly
organized, validly existing and in good standing (if applicable) under the laws
of the jurisdiction of its organization or formation, or without the prior
written consent of Lender, amend, modify, terminate or fail to comply with the
provisions of Borrower's partnership agreement, articles or certificate of
incorporation, articles of organization, operating agreement, or similar
organizational documents, as the case may be, as same may be further amended or
supplemented, if such amendment, modification, termination or failure to comply
would adversely affect the ability of Borrower to perform its obligations
hereunder, under the Note or under the Other Security Documents; (v) own any
subsidiary or make any investment in, any person or entity without the prior
written consent of Lender; (vi) commingle its assets with the assets of any of
its general partners, managing members, shareholders, affiliates, principals or
of any other person or entity; (vii) incur any debt, secured or unsecured,
direct or contingent (including guaranteeing any obligation), other than the
Debt, excepting trade payables (which must be paid when due) incurred by
Borrower in the ordinary course of its business of owning and operating the
Mortgaged Property; (viii) fail to maintain its records, books of account and
bank accounts separate and apart from those of the general partners, managing
members, shareholders, principals and affiliates of Borrower, the affiliates of
a general partner or managing member of Borrower, and any other person or
entity; (ix) enter into any contract or agreement with any general partner,
managing member, shareholder, principal or affiliate of Borrower, any Guarantor
or any indemnitor, or any general partner, managing member, shareholder,
principal or affiliate thereof, except upon terms and conditions that are
intrinsically fair and substantially similar to those that would be available on
an arms-length basis with third parties other than any general partner, managing
member, shareholder, principal or affiliate of Borrower, any Guarantor or any
indemnitor, or any general partner, managing member, shareholder, principal or
affiliate thereof; (x) seek the dissolution or winding up in whole, or in part,
of Borrower; (xi) maintain its assets in such a manner that it will be costly or
difficult to segregate, ascertain or identify its individual assets from those
of any general partner, managing member, shareholder, principal or affiliate of
Borrower, or any general partner, managing member, shareholder, principal or
affiliate thereof or any other person; (xii) hold itself out to be responsible
for the debts of another person; (xiii) make any loans to any third party; (xiv)
fail either to hold itself out to the public as a legal entity separate and
distinct from any other entity or person or to conduct its business solely in
its own name in order not (A) to mislead
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others as to the identity with which such other party is transacting business,
or (B) to suggest that Borrower is responsible for the debts of any third party
(including any general partner, managing member, shareholder, principal or
affiliate of Borrower, or any general partner, managing member, shareholder,
principal or affiliate thereof); (xv) fail to maintain adequate capital for the
normal obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations; or (xvi) file or
consent to the filing of any petition, either voluntary or involuntary, to take
advantage of any applicable insolvency, bankruptcy, liquidation or
reorganization statute, or make an assignment for the benefit of creditors.
(b) In addition to the foregoing, if Borrower or its Controlling
Entity is a single member limited liability company, it must be organized under
the laws of Delaware, its organizational documents must also contain
continuation of existence provisions acceptable to Lender, it must cause an
acceptable Delaware counsel to deliver acceptable non-consolidation and
non-dissolution opinions to Lender and it must satisfy any other requirements
imposed by Lender.
(c) If the original principal amount of the Loan was $20,000,000.00 or
more, then, in addition to the foregoing:
(i) Borrower's organizational documents shall require unanimous
consent of all shareholders, members, partners or other owners of an equity
ownership interest in Borrower prior to the filing of petition in bankruptcy, or
for the dissolution, liquidation, consolidation, merger or sale of all or
substantially all of Borrower's assets.
(ii) Borrower must have (A) at least two Independent Controlling
Persons (hereinafter defined), and (B) organizational documents requiring the
unanimous consent of all directors, members, partners or other persons having
similar decision-making authority with respect to Borrower (each, a "Controlling
Person") prior to the filing of petition in bankruptcy, or for the dissolution,
liquidation, consolidation, merger or sale of all or substantially all of either
Borrower's assets. The term "Independent Controlling Person" shall mean a
Controlling Person approved by Lender who shall at no time during the term of
the Loan be, or have been within the 5 years immediately preceding becoming an
Independent Controlling Person, (1) an employee, director, member, stockholder,
partner or employee of Borrower or of any of its Affiliates (hereinafter
defined), (2) a customer of or supplier to (including any attorney, accountant,
broker or banker) to Borrower or any of its Affiliates, or (3) an immediate
family member of any such employee, director, member, stockholder, partner,
customer or supplier. The term "Affiliate" shall mean any person or entity (I)
which owns beneficially, directly or indirectly, ten percent (10%) or more of
the outstanding ownership interest in Borrower (each, an "Owning Affiliate"), or
(II) of which ten percent (10%) or more of its outstanding ownership interest is
owned beneficially, directly or indirectly, by any Owning Affiliate, or (III)
which is controlled by any Owning Affiliate, as the term "control" is defined
under Section 230.405 of the Rules and Regulations of the Securities and
Exchange Commission, 17 C.F.R. Section 230.405, or (IV) any immediate family
member of the foregoing.
(iii) Borrower agrees that its Controlling Entity shall also be
subject to all of the requirements contained in this section, except that its
organizational documents shall prohibit it from engaging in any business or
activity other than the operation and maintenance of the Mortgaged Property, and
activities incidental thereto, or acquiring or owning any material assets other
than its interest in Borrower.
54. Fixture Filing. This Security Instrument shall, to the extent permitted
under applicable law, be deemed a fixture filing within the meaning of any
applicable uniform commercial code, and for such purpose, the following
information is given:
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Debtor Name and Address: XXXX Realty, LLC
00000 Xxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Debtor Tax ID No. 00-0000000
Debtor Organizational Identification No. B30696
Debtor State of Organization Michigan-limited liability company
Name and address PNC Bank, National Association
of Secured Party 10851 Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attn: Closing Department
Description of the type
(or items) of property: See the Recitals herein.
Description of real estate
to which the collateral
is attached or upon which
it is or will be located: See Exhibit A hereto.
Some of the above described collateral is or is to become fixtures upon the
above-described real estate, and this fixture filing is to be filed for record
in the public real estate records.
55. Additional Terms and Provisions. Certain additional and supplemental
terms and provisions of this Security Instrument are set forth in this
paragraph. The terms and provisions of this paragraph control and supersede any
conflicting terms and provisions contained in this Security Instrument.
(a) Plastipak Leases. For purposes of this Security Instrument, the term
"Plastipak Leases" shall mean the following Lease Agreements entered
into between Borrower, as Landlord and Plastipak Packaging, Inc.
("Plastipak"), as Tenant (or the affiliate as Tenant identified in
(vii) below), and any amendments or modifications thereto approved by
Lender:
(i) Agreement of Lease, as amended, between Borrower and Plastipak
dated June 18, 2003 regarding the Alabama Property (as defined in
the Note);
(ii) Agreement of Lease, as amended, between Borrower and Plastipak
dated September 1, 2002 regarding the Florida Property (as
defined in the Note);
(iii) Agreement of Lease, as amended, between Borrower and Plastipak
dated February 7, 2005 regarding the Louisiana Property (as
defined in the Note);
(iv) Agreement of Lease, as amended, between Borrower and Plastipak,
as successor-in-interest to Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx
dated January 19, 1999 regarding the Massachusetts Property (as
defined in the Note);
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(v) Agreement of Lease, as amended, between Borrower and Plastipak,
as successor-in-interest to Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx
dated February 1, 1996 regarding the Illinois Property (as
defined in the Note);
(vi) Agreement of Lease, as amended, between Borrower and Plastipak
dated on or about the date hereof regarding the Plymouth Property
(as defined in the Note);
(vii) Agreement of Lease, as amended, between Borrower and Clean Tech
Inc., a Michigan corporation, as successor-in-interest to Xxxxxxx
X. Xxxxx and Xxxxxxx X. Xxxxx dated February 1, 1996 regarding
the Dundee Property (as defined in the Note);
(viii) Agreement of Lease, as amended, between Borrower and Plastipak,
as successor-in-interest to Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx
dated February 1, 1996 regarding the Westland Property (as
defined in the Note);
(ix) Agreement of Lease, as amended, between Borrower and Plastipak,
as successor-in-interest to Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx
dated February 1, 1996 regarding the Washington Street Property
(as defined in the Note);
(x) Agreement of Lease, as amended, between Borrower and Plastipak,
as successor-in-interest to Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx
dated February 1, 1996 regarding the Route #65 Property (as
defined in the Note);
(xi) Agreement of Lease, as amended, between Borrower and Plastipak,
as successor-in-interest to Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx
dated February 1, 1996 regarding the Xxxxxx Property (as defined
in the Note);
(xii) Agreement of Lease, as amended, between Borrower and Plastipak
dated January 1, 2000 regarding the Lima Property (as defined in
the Note);
(xiii) Agreement of Lease, as amended, between Borrower and Plastipak,
as successor-in-interest to Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx
dated February 1, 1996 regarding the Highlands Property (as
defined in the Note); and
(xiv) Agreement of Lease, as amended, between Borrower and Plastipak,
as successor-in-interest to Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx
dated August 28, 1996 regarding the Garland Property (as defined
in the Note).
(b) The term "Rated Entity"shall mean Plastipak Holdings, Inc., a Michigan
corporation.
(c) The term "Rating Agency" shall mean a nationally recognized credit
rating agency (including, without limitation, Standard & Poor's Rating
Group, Fitch Investors Service, L.P., Xxxxx'x Investors Service, Inc.
or Duff and Xxxxxx Credit Rating Co., and their respective successors
and assigns).
(d) Amendments to Paragraph 3.
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(1) Any deductibles applicable to any insurance policy with respect to
physical loss (including fire, lightning, windstorm or hail, smoke,
aircraft or vehicles, riot or civil commotion, terrorism, vandalism,
sprinkler leakage, sinkhole collapse, volcanic action, falling
objects, weight of snow, ice or sleet and water damage) shall not
exceed $100,000 (except where a separate wind-loss deductible applies
in which event the deductible shall not exceed two percent (2%) of the
face amount of the policy and except for terrorism coverage where the
deductible shall not exceed $500,000.00).
(2) Paragraph 3 is amended to add subsection (f) as follows:
"(f) All insurance required hereunder shall be issued by
companies approved by Lender and licensed to do business in the state
where the Property is located. All policies evidencing the required
insurance shall contain a special mortgagee clause in favor of Lender
providing, among other things, that the policies may not be canceled
without thirty (30) days prior to written notice to Lender; shall not
contain any effective co-insurance provisions; shall be written for a
term of not less than one year, with premiums prepaid, and shall be
issued by a company or companies acceptable to Lender and having a
rating of AA or higher (or the equivalent thereof) from at least two
(2) of the Rating Agencies (one of which shall be Standard & Poor's if
Standard & Poor's is rating the securities issued in any Secondary
Market Transaction (the "Securities") and one of which must be Moody's
if Xxxxx'x is rating the Securities, or if only one Rating Agency is
rating the Securities, then by such one Rating Agency."
(e) Amendments to Paragraph 4.
(1) The following is hereby added after the second sentence of
Section 4(a), "If no Event of Default (hereinafter defined), or
event which with the giving of notice or passage of time, or
both, would give rise to an Event of Default, has occurred as of
the date of the Casualty then Borrower shall retain the right to
settle, adjust or compromise claims for Insurance proceeds
provided, (i) Lender has received written notice of the nature
and extent of the Casualty, (ii) Borrower confirms in writing
that the damage caused by the Casualty does not exceed
$150,000.00 and Lender in its reasonable discretion agrees with
such estimate. The foregoing shall not be deemed to modify the
manner in which Insurance Proceeds are retained, disbursed or
applied as provided in the remainder of this Section."
(2) The sum of "$25,000.00" contained in Section 4(a)(i) is hereby
replaced with the sum of "$150,000.00" in said Section.
(3) Paragraphs 4(a)(ii) and (iii) are amended to read as follows:
(ii) If the aggregate amount of any Insurance Proceeds
resulting from a Casualty (or series of related Casualties)
exceeds $150,000.00 and the value of the
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Mortgage (AL)
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-32-
applicable parcel of the Mortgaged Property affected by any such
Casualty or series of related Casualties immediately following
such Casualty remains greater than twenty-five percent (25%) of
its value immediately prior to such Casualty, then all Insurance
Proceeds from such Casualty shall be paid to Lender; provided,
however, that so long as no Event of Default exists and subject
to the requirements set forth herein, Lender shall disburse such
amounts of the Insurance Proceeds (after deduction for Lender's
costs and expenses of collection) as Lender reasonably deems
necessary for the repair or replacement of the applicable parcel
of the Mortgaged Property, with any balance remaining after such
disbursement being applied by Lender to the Debt in such priority
and proportions as Lender deems proper;
(iii) If the value of the applicable parcel of the Mortgaged
Property affected by any Casualty or series of Casualties
immediately following any Casualty (or series of related
Casualties) does not exceed twenty five percent (25%) of its
value immediately prior to such Casualties, then all Insurance
Proceeds from such Casualties shall be paid directly to Lender
and Lender, at its discretion may declare the Allocated Loan
Amount (as defined in the Note including any adjustment which may
be made to the Allocated Loan Amount arising from the Casualty)
attributable to the applicable parcel of the Mortgaged Property
affected by the Casualty to be immediately due and payable and
apply all such Insurance Proceeds, after deduction for Lender's
costs and expenses of collection, to the Debt in such priority
and proportions as Lender deems proper. In the event that the
Insurance Proceeds are applied toward the repayment of the Debt
as provided in the preceding sentence, Borrower shall be entitled
to obtain from Lender a release without representation or
warranty of the applicable parcel of Mortgaged Property affected
by the Casualty from the lien and security interests created by
the applicable Security Instrument (a "Casualty Release")
provided that (1) no Event of Default exists, and, (ii) Borrower
pays to Lender the amount, if any, by which one hundred twenty
five percent (125%) of the outstanding principal balance of the
Debt attributable to the Allocated Loan Amount for such parcel
exceeds the Insurance Proceeds received by Lender and applied to
repayment of the Debt (without the application of Prepayment
Consideration), in which case the Allocated Loan Amount for such
parcel shall be reduced to zero. In the Event of a Casualty
Release Lender shall reamortize the outstanding Debt utilizing:
(a) the Applicable Interest Rate (as defined in the Note), (b)
the sum of the principal balance of the Debt less the amount
applied by Lender to the Debt arising from Casualty, and (c) a
period equal to the number of calendar months remaining on the
original twenty (20) year amortization period as of the first day
of the calendar month immediately following Lender's receipt of
the sum which shall be applied to the Debt in accordance with the
foregoing; which reamortization calculation shall result in a new
Monthly Debt Service Payment (as defined in the Note) which shall
commence on the first day of the calendar month immediately
following Lender's receipt and application of the foregoing
amount to the Debt. Borrower shall execute any amendment and/or
restatement of the Note, this Security Instrument or the Other
Security Documents and obtain any endorsements to the title
policies accepted by Lender upon the closing of the Loan as
Lender shall request to accomplish the Casualty Release and
reamortization of the Loan. In the event Lender does not declare
the Allocated Loan Amount attributed to said parcel to be
immediately due and payable, Borrower shall promptly repair,
replace or rebuild any part of the Mortgaged Property destroyed
by such Casualty. In such event, subject to the requirements set
forth herein, Lender shall disburse such amounts of the Insurance
Proceeds as
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Lender reasonably deems necessary for the repair or replacement
of the applicable parcel of the Mortgaged Property, with any
balance remaining after such disbursement being applied by Lender
to the Debt in such priority and proportions as Lender deems
proper; and
(f) Notwithstanding the provisions of Section 6, provided no Event of
Default has occurred under the Note, this Security Instrument or the
Other Security Documents and the Rated Entity continues to possess a
long term local issuer credit rating, as determined by a Rating
Agency, higher than CCC, the following paragraphs (i) - (iv) shall
apply only during the period that all Plastipak Leases remain in full
force and effect:
i. Taxes. The Borrower shall not be required to make the monthly
payments to be held by the Lender as the Taxes portion of the Escrowed
Funds provided:
(a) Plastipak is operating at the Mortgaged Property and at all
other properties which are demised under the Plastipak
Leases;
(b) No Event of Default has occurred under any of the Plastipak
Leases;
and
(c) All Taxes are paid before they are late or delinquent, and
evidence of such payment is provided to Lender no later than
fifteen (15) days after such taxes become delinquent.
ii. Insurance Premiums. The Borrower shall not be required to make the
monthly payments to be held by Lender as the Insurance Premium portion
of the Escrowed Funds provided:
(a) Plastipak is operating at the Mortgaged Property and at all
other properties which are demised under the Plastipak
Leases;
(b) No Event of Default has occurred under any of the Plastipak
Leases; and
(c) Borrower provides to Lender certificates evidencing renewal
of the insurance coverage provided hereunder ten (10) days
before the earlier of, (a) the due date of all premiums for
renewal of such coverage, or (b) the lapse, termination or
expiration of any insurance coverage provided hereunder.
iii. Upon (A) a violation of any of the conditions enumerated in
55(f)(i) and 55(f)(ii) of this Security Instrument, (B) the Rated
Entity being assigned a long term local issuer credit rating, as
determined by any Rating Agency, of CCC or below, or (C) an Event of
Default occurs under the Note, this Security Instrument or Other
Security Documents, the Borrower's obligation to make the full monthly
payments to be held by the Lender as the Taxes and Insurance Premium
portion of the Escrowed Funds under Section 6 of the Security
Instrument shall immediately commence without notice and continue. In
the event that a monthly escrow for Taxes and/or
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Last revised 7/5/05
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Insurance Premiums is instituted or reinstated hereunder solely as a
result of the Rated Entity being assigned a long term local issuer
credit rating of CCC or below, such monthly escrow shall be again
suspended if the credit rating assigned to the Rated Entity is raised
to B- or higher. If such credit rating is again lowered to CCC or
below or any of the conditions contained herein shall be violated, the
full monthly payments for Taxes and Insurance Premiums shall be
reinstated in accordance with Section 6 hereof.
iv. This Section 55(f) shall only apply to the Taxes and Insurance
Premium portion of the Escrowed Funds as such terms are defined in
Section 6 of the Security Instrument.
(g) The fourth sentence of Section 7 is hereby modified to add the
following after the tenth (10th) word contained therein: "in excess of
$150,000.00 for any parcel of Mortgaged Property subject to the
Condemnation".
(h) Paragraph 9(d) is amended to read as follows:
"(d) Unless Lender otherwise consents in writing, Borrower shall not
initiate, join in, acquiesce in or consent to: (i) the removal or
resignation of the property manager for the Mortgaged Property; or
(ii) if such property manager is an entity affiliated with Borrower,
the transfer of ownership, management or control of such property
manager to a person or entity other than Borrower, its managing
member, general partner or similar controlling entity in Borrower.
Notwithstanding anything herein to the contrary, in connection with
any request for Lender's consent to a any removal or replacement of
the property manager subsequent to the conveyance of the Note to a
real estate mortgage investment conduit (a "REMIC"), within the
meaning of Section 860D of the Internal Revenue Code of 1986, as
amended from time to time or any successor statute (the "Code") or to
another entity in connection with a Secondary Market Transaction
(hereinafter defined), Borrower acknowledges that Lender may require
Borrower to obtain and deliver to Lender a new non-consolidation
opinion issued by counsel acceptable to Lender and other documentation
evidencing that the proposed removal or replacement will not (i) cause
the then owner of the Note to fail to qualify as a REMIC; and (ii)
result in a qualification, downgrade or withdrawal of any credit
rating then in effect for any securities or certificates issued by the
then owner of the Note in connection with a securitization which
includes the Note. Lender may condition its consent to any change,
removal or replacement of the property manager upon the issuance of
written approval from the Rating Agencies.
(i) Section 10(b) is hereby modified to add the following sentence to the
end thereof:
No Transfer of the Mortgaged Property shall be permitted unless the
foregoing conditions are satisfied and the Transfer includes the
property secured by this Security Instrument and property known as
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx Xxxx, Xxxxxxxxxxxx Xxxxxx, Xxxxxxx
("Florida Property"), 0000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx Xxxxxx,
Xxxxxxxxx ("Louisiana Property"), 0000 Xxxx Xxxxxxxxxxx, Xxxxxxxxx,
Xxxxxxxxx Xxxxxx, Xxxxxxxx ("Illinois Property"), 000 Xxxxxxxxxx
Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxxx ("Massachusetts
Property"), 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxxx
("Dundee Property"), 00000 Xxx Xxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxx,
Xxxxxxxx ("Plymouth Property"), 0000 Xxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxx,
Xxxxxxxx ("Westland Property"), 00000 Xxxxx Xxxxx #00, Xxxxxxx Xxxxxx,
Xxxxxx Xxxxxx, Xxxx ("Route #65
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Property"), 000 Xxxxxxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxx
("Washington Street Property"), 000 Xxxxxx Xxxx, Xxxx, Xxxxx Xxxxxx,
Xxxx ("Lima Property"), 000 Xxxx Xxxxx Xxxx, Xxxxxx, Xxxxxx Xxxxxx,
Xxxx ("Medina Property"), 0000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxx Xxxxxx,
Xxxxx ("Garland Property") and 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx
Xxxxxx, Xxxxx ("Highlands Property"), which Florida Property,
Louisiana Property, Illinois Property, Massachusetts Property, Xxxxx
#00 Xxxxxxxx, Xxxxxxxxxx Xxxxxx Property, Lima Property and Medina
Property are encumbered by a Mortgage, Security Agreement, Assignment
of Leases and Rents and Fixture Filing of even date herewith further
securing the Note, the Dundee Property, Plymouth Property and Westland
Property are encumbered by a Mortgage of even date herewith further
securing the Note and the Garland Property and Highlands Property are
encumbered by a Deed of Trust of even date herewith further securing
the Note. Any such Transfer shall occur in a single transaction and
the New Borrower shall be a single entity complying with all terms and
conditions hereof which New Borrower shall hold title to all of the
foregoing described properties.
(j) Amendments to Section 14:
(1) The sixty (60) day period in the last sentence of Section
14(a)(i) is changed to a ninety (90) day period.
(2) The following is hereby added to the end of Section 14(a)(ii):
Notwithstanding the foregoing, during the period that the title
owner of the Mortgaged Property is XXXX Realty, LLC, a Michigan
limited liability company, the word "audited" in the second
sentence of Section 14(a)(ii) shall be replaced with the word
"prepared".
(3) The following new Section 14(e) is hereby added to the end of
Section 14:
(e) Borrower shall cause to be delivered to the Lender, audited
year-end financial statements of Plastipak prepared by an
independent certified public accountant with all footnotes
including a balance sheet and income statement on an annual basis
on the date each year which is the earlier of, (i) five (5) days
after receipt by Borrower of such financial statements, or (ii)
ninety (90) days after the close of each fiscal year of
Plastipak.
(k) Amendments to Section 18:
(1) Section 18(i) is hereby modified to add "beyond any applicable
notice and cure periods" after the sixth word contained therein.
(2) The thirty (30) day period in Section 18(j) is changed to sixty
(60) days.
(3) The following is hereby added to the end of Section 18:
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Mortgage (AL)
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(n) notwithstanding the provisions of subclause (m) above, any
failure of Borrower to comply with the terms of the Capital
Improvement Escrow Agreement, the Tenant Improvement and Leasing
Commission Escrow Agreement, the Deferred Maintenance Escrow
Agreement and the Security Agreement and Lockbox Agreement of
even date herewith between Borrower and Lender (the "Additional
Agreement(s)"), each of which Additional Agreements is an Other
Security Document under the terms of this Security Instrument).
(l) The following sentence is hereby added to the end of Section 47:
The term Other Security Documents shall be deemed to include but not
be limited to any other Mortgage or Deed of Trust securing all or a
portion of the Debt.
(m) Section 53 is hereby deleted and replaced with the following:
53A. Single Purpose Entity/Separateness. Borrower represents,
warrants, covenants and agrees as follows:
(a) Until the Debt has been paid in full to Lender, the
Borrower's business and purpose shall consist solely of the
acquisition, ownership, operation and management of the Mortgaged
Property and such activities as are necessary, incidental or
appropriate in connection therewith, including the Borrower's guaranty
of Plastipak Holdings, Inc.'s ("Plastipak Holdings") 10.75% Senior
Notes due 2011 (the "Senior Notes") and its other obligations under
the Plastipak Holdings Indenture dated as of August 20, 2001 with
Xxxxx Fargo Bank, N.A. as Trustee (successor by consolidation with
Xxxxx Fargo Bank Minnesota, National Association)(the "Plastipak
Indenture") and the Replacement Guaranty-Plastipak (as defined below).
(b) Without the consent of all members of Borrower and the
manager of Borrower ("Manager"), neither the Borrower or Manager shall
have authority to:
(i) borrow money or incur indebtedness on behalf of the
Borrower other than normal trade accounts payable and lease
obligations in the normal course of business, or grant consensual
liens on the Borrower's property; except, for the Debt and other
indebtedness expressly permitted in this Security Instrument, the
Note or in the Other Security Documents, and to grant a mortgage,
lien or liens on the Mortgaged Property to secure such Security
Instrument;
(ii) dissolve, terminate or liquidate, in whole or in part,
the Borrower;
(iii) sell, transfer or otherwise dispose of all or
substantially all of the assets of the Borrower;
(iv) file a voluntary petition or otherwise initiate
proceedings to have the Borrower adjudicated bankrupt or
insolvent, or consent to the institution of bankruptcy or
insolvency proceedings against the Borrower, or file a petition
seeking or consenting to reorganization or relief of the Borrower
as debtor under any applicable federal or state law relating to
bankruptcy, insolvency, or other relief for debtors with respect
to the Borrower; or seek or consent to the appointment of any
trustee, receiver, conservator, assignee, sequestrator,
custodian, liquidator (or other similar official) of the Borrower
or of all or any
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substantial part of the properties and assets of the Borrower, or
make any general assignment for the benefit of creditors of the
Borrower, or admit in writing the inability of the Borrower to
pay its debts generally as they become due or declare or effect a
moratorium on the Borrower debt or take any action in furtherance
of any action;
(v) amend, modify or alter the single purpose entity and
separateness provisions in Borrower's Operating Agreement, as
amended to the date hereof, or the single purpose entity and
separateness provisions in Borrower's Articles of Organization,
as amended to the date hereof; or
(vi) merge or consolidate with any other person or entity.
Notwithstanding the foregoing, the Manager shall have no
authority (1) to take any action in items (i) through (vi) above
or consent to such action unless such action has been approved by
a unanimous vote of the Manager's Board of Directors, including
the Independent Directors, as defined in paragraph 53B below, or
(2) to take any action in items (i), (ii), (iii), (v) or (vi)
without the written consent of the holder of the Security
Instrument.
(c) The Borrower shall have a corporate Manager which owns at
least a .5% ownership interest in the Borrower and which has articles
of incorporation containing the restrictions and terms set forth below
in paragraph 53B ("Special Purpose Manager"), and the Borrower shall
have no other managers or managing members.
(d) Upon the disassociation or withdrawal of the Special Purpose
Manager from the Borrower or the bankruptcy, insolvency or liquidation
of the Special Purpose Manager, the Borrower shall (i) appoint a new
corporate managing member which complies with paragraph 53B and which
has articles of incorporation and bylaws containing the restrictions
and terms set forth in paragraph 53B, (ii) comply with the other terms
and provisions of the Security Instrument and (iii) deliver an
acceptable non-consolidation opinion to the holder of the Security
Instrument and to any applicable rating agency concerning, as
applicable, the Borrower, the new managing member, and its owners with
exceptions that are substantially similar to those contained in the
non-consolidation opinion delivered to the Lender on the date hereof..
(e) All property owned by the Borrower shall be owned by the
Borrower as an entity and, insofar as permitted by applicable law, no
member shall have any ownership interest in any Borrower property in
its individual name or right, and each member's membership interest
shall be personal property for all purposes.
(f) The Borrower has not and shall not: (i) engage in any
business or activity other than the ownership, operation and
maintenance of the Mortgaged Property, and activities incidental
thereto (including the Borrower's guaranty of Plastipak Holdings'
Senior Notes and its other obligations under the Plastipak Indenture
and the Replacement Guaranty-Plastipak), except for the Borrower's
past guaranty and other obligations under Plastipak Holdings' Fifth
Amended and Restated Credit Agreement with Comerica Bank dated January
28, 2005 (the "Plastipak Credit Agreement") all of which have been
released and satisfied as of the date of the Loan closing and except
for the Borrower's past intercompany debt obligations to Plastipak
Holdings all of which have been satisfied and paid in full as of the
date of the Loan closing; (ii) acquire or own any material assets
other than (A) the Mortgaged Property, and (B) such incidental
personal property as may be necessary for the operation of the
Mortgaged Property; (iii) merge into or consolidate with any person or
entity or dissolve, terminate or liquidate in whole or in part,
transfer or otherwise dispose of all or substantially all of its
assets or change its legal structure, without in each case Lender's
prior written consent; (iv) fail to preserve its existence as an
entity duly organized, validly existing and in good standing (if
MCF 415
Mortgage (AL)
Last revised 7/5/05
-38-
applicable) under the laws of the jurisdiction of its organization or
formation, or without the prior written consent of Lender, amend,
modify, terminate or fail to comply with the provisions of Borrower's
partnership agreement, articles or certificate of incorporation,
articles of organization, operating agreement, or similar
organizational documents, as the case may be, as same may be further
amended or supplemented, if such amendment, modification, termination
or failure to comply would adversely affect the ability of Borrower to
perform its obligations hereunder, under the Note or under the Other
Security Documents; (v) own any subsidiary or make any investment in,
any person or entity without the prior written consent of Lender; (vi)
commingle its assets with the assets of any of its general partners,
managing members, shareholders, affiliates, principals or of any other
person or entity; (vii) incur any debt, secured or unsecured, direct
or contingent (including guaranteeing any obligation), other than the
Debt, excepting (A) trade payables incurred by Borrower in the
ordinary course of its business of owning and operating all property
owned by the Borrower including the Mortgaged Property, which must be
paid when due and which shall not exceed in the aggregate
$4,000,000.00 (B) the Borrower's guarantee of Plastipak Holdings'
Senior Notes, (C) the Borrower's guaranty of any unsecured senior
notes issued by Plastipak Holdings to refinance or replace the Senior
Notes so long as (1) such unsecured notes do not exceed an aggregate
principal amount of $500,000,000.00 and are issued on substantially
similar terms as the Senior Notes, (2) the Plastipak Senior Notes are
repaid in full, (3) the Borrower's guarantee of the Plastipak Senior
Notes is terminated and (4) Borrower delivers to Lender all
documentation of the foregoing ten (10) days prior to the issuance of
such refinanced/replacement notes (the "Replacement
Guaranty-Plastipak") and (D) Borrower's past obligations under the
Plastipak Credit Agreement all of which have been released and
satisfied as of the date of the Loan closing and the Borrower's past
intercompany debt obligations to Plastipak Holdings all of which have
been satisfied and paid in full as of the date of the Loan closing;
(viii) fail to maintain its records, books of account and bank
accounts separate and apart from those of the general partners,
managing members, shareholders, principals and affiliates of Borrower,
the affiliates of a general partner or managing member of Borrower,
and any other person or entity; (ix) enter into any contract or
agreement with any general partner, managing member, shareholder,
principal or affiliate of Borrower, any Guarantor or any indemnitor,
or any general partner, managing member, shareholder, principal or
affiliate thereof, except upon terms and conditions that are
intrinsically fair and substantially similar to those that would be
available on an arms-length basis with third parties other than any
general partner, managing member, shareholder, principal or affiliate
of Borrower, any Guarantor or any indemnitor, or any general partner,
managing member, shareholder, principal or affiliate thereof; (x) seek
the dissolution or winding up in whole, or in part, of Borrower; (xi)
maintain its assets in such a manner that it will be costly or
difficult to segregate, ascertain or identify its individual assets
from those of any general partner, managing member, shareholder,
principal or affiliate of Borrower, or any general partner, managing
member, shareholder, principal or affiliate thereof or any other
person or entity; (xii) hold itself out to be responsible for the
debts of another person or entity, except for the Borrower's guaranty
of Plastipak Holdings' Senior Notes, the Replacement
Guaranty-Plastipak and Borrower's past obligations under the Plastipak
Credit Agreement all of which have been released and satisfied as of
the date of the Loan closing; (xiii) make any loans to any third
party; (xiv) fail either to hold itself out to the public as a legal
entity separate and distinct from any other entity or person or to
conduct its business solely in its own name in order not (A) to
mislead others as to the identity with which such other party is
transacting business, or (B) to suggest that Borrower is responsible
for the debts of any third party (including any general partner,
managing member, shareholder, principal or affiliate of Borrower, or
any general partner, managing member, shareholder, principal or
affiliate thereof); (xv) fail to maintain adequate capital for the
normal obligations reasonably foreseeable in a business of its size
and character and in light of its contemplated business operations;
(xvi) fail to preserve and keep in full force and effect its
existence, good standing and qualification to do business in the state
in which the Premises is located; (xvii) fail to obtain and maintain
in full force and effect, and abide by and satisfy the material terms
and conditions of, all material permits, licenses, registrations and
other authorizations with or granted by any governmental authorities
that may be required from time to time with respect to the performance
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Last revised 7/5/05
-39-
of its obligations under the Security Instrument; (xviii) fail to hold
regular meetings, as appropriate, to conduct the business of the
Borrower, or fail to observe all customary organizational and
operational formalities; (xix) fail to prepare its own separate tax
returns and financial statements, except that Borrower's past and
future financial position, assets, liabilities, net worth and
operating results were and will continue to be included in Plastipak
Holdings' consolidated financial statements provided that all such
consolidated financial statements prepared after the date hereof shall
contain an appropriate notation to indicate the separateness of the
Borrower from such affiliates and indicate that Borrower's assets and
credit are not available to satisfy the debts and obligations of such
affiliates other than Borrower's guaranty of Plastipak Holdings'
Senior Notes and the Replacement Guaranty-Plastipak; (xx) fail to use
separate stationery, invoices and checks; (xxi) assume, guarantee or
pay the debts or obligations of any other person or entity, except for
(A) the Borrower's guaranty of Plastipak Holdings' Senior Notes, (B)
the Replacement Guaranty-Plastipak, (C) Borrower's past obligations
under the Plastipak Credit Agreement all of which have been released
and satisfied as of the date of the Loan closing, and (D) the
Borrower's past intercompany debt obligations to Plastipak Holdings
all of which have been satisfied and paid in full as of the date of
the Loan closing; (xxii) fail to pay its own liabilities and expenses
only out of its own funds, including without limitation paying
salaries of its own employees from its own funds; (xxiii) fail to
maintain sufficient number of employees in light of its contemplated
business operations; (xxiv) acquire the obligations or securities of
its affiliates or owners, including partners, members or shareholders,
as appropriate; (xxv) pledge its assets for the benefit of any other
person or entity other than the holder of the Security Instrument,
except for the past mortgages on the Mortgaged Properties and related
security instruments that the Borrower granted in favor of Comerica
Bank, as Agent, under the Plastipak Credit Agreement all of which have
been satisfied, released and discharged as of the date of the Loan
closing; or (xxvi) fail to correct any known misunderstanding
regarding its separate identity.
(g) No transfer of any direct or indirect ownership interest in
the Borrower such that the transferee owns more than a 49% interest in
the Borrower (or such other interest as specified in the Security
Instrument or by a rating agency) may be made unless such transfer is
conditioned, among other things, upon those items set forth in the
Security Instrument and upon the delivery of an acceptable
non-consolidation opinion to the holder of the Security Instrument and
to any applicable rating agency concerning, as applicable, the
Borrower, the new transferee and/or their respective owners.
53B. Single Purpose Entity/Separateness - Corporate Manager: Borrower
represents, warrants, covenants and agrees as follows:
(a) The Manager's business and purpose shall consist solely of
the following: (i) to acquire a membership interest in and act as the
manager of Borrower; and (ii) to engage in such other lawful
activities permitted to corporations by the general corporation laws
of the State of Michigan as are incidental, necessary or appropriate
to the foregoing.
(b) At all times there shall be at least two (2) individuals on
the Manager's Board of Directors who are each an Independent Director.
"Independent Director" shall mean a director of the Manager who is not
and has not been at any time during the preceding five (5) years
immediately before its becoming an Independent Director: (i) a
stockholder, partner, member, director, officer or employee of, or
otherwise affiliated with the Borrower, the Manager or any of their
affiliated entities; (ii) a customer, supplier or other person who
derives more than 10% of its purchases or revenues from its activities
with the Manager, Borrower or any of their affiliates; (iii) a person
or other entity controlling or under common control with any such
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Mortgage (AL)
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stockholder, partner, member, director, officer, employee, customer,
supplier or other person; or (iv) a member of the immediate family of
any such stockholder, partner, member, director, officer, employee,
customer, supplier or other person. (As used herein, the term
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of management, policies or activities
of a person or entity, whether through ownership of voting securities,
by contract or otherwise.).
(c) No Independent Director shall, with regard to any action to
be taken under or in connection with the single purpose entity
provisions, owe a fiduciary duty or other obligation to the initial
stockholder nor to any successor stockholders (except as may
specifically be required by the statutory law of any applicable
jurisdiction), and every stockholder, including each successor
stockholder, shall consent to the foregoing by virtue of such
stockholder's purchase of shares of capital stock of the Manager, no
further act or deed of any stockholder being required to evidence such
consent. Instead, such director's fiduciary duty and other obligations
with regard to such action under or in connection with the single
purpose entity provisions shall be owed to the Manager (including its
creditors). In addition, no Independent Director may be removed unless
his or her successor Independent Director has been elected.
(d) Notwithstanding any provision of law that otherwise so
empowers the Manager, the Manager shall not, without the unanimous
consent of the Manager's Board of Directors, including the Independent
Directors, do any of the following:
(i) engage in any business or activity other than those set
forth in paragraph 53B(a) above or cause or allow the Borrower to
engage in any business or activity other than as set forth in its
Articles of Organization;
(ii) incur any indebtedness or assume or guaranty any
indebtedness of any other entity, other than indebtedness
permitted in this Security Instrument;
(iii) cause the Borrower to incur any indebtedness or to
assume or guaranty any indebtedness of any other entity, other
than the Debt, indebtedness permitted in this Security Instrument
and normal trade accounts payable in the ordinary course of
business, except for Borrower's guarantee of Plastipak Holdings'
Senior Notes and its other obligations under the Plastipak
Indenture;
(iv) dissolve, terminate or liquidate, in whole or in part;
(v) cause or consent to the dissolution, termination or
liquidation, in whole or in part, of the Borrower;
(vi) consolidate or merge with or into any other entity or
convey or transfer or lease its property and assets substantially
as an entirety to any person or entity;
(vii) cause the Borrower to consolidate or merge with or
into any other entity or to convey or transfer or lease its
Mortgaged Property and assets substantially as an entirety to any
person or entity;
(viii) with respect to the Manager or the Borrower,
institute proceedings to be adjudicated bankrupt or insolvent, or
consent to the institution or bankruptcy or insolvency
proceedings against it, or file a petition seeking or consenting
to reorganization or relief under any applicable federal or state
law relating to bankruptcy, or consent to the appointment of a
receiver, liquidator, assignee, trustee, custodian, conservator,
sequestrator
MCF 415
Mortgage (AL)
Last revised 7/5/05
-41-
(or other similar official) of the Manager or the Borrower or of
all or any substantial part of property of the Manager or the
Borrower, or make any assignment for the benefit of creditors, or
admit in writing its inability to pay its debts generally as they
become due or declare or effect a moratorium on the Borrower or
Manager debt, or take corporate action in furtherance of any such
action;
(ix) amend the single purpose entity and separateness
provisions of Manager's Articles of Incorporation or approve an
amendment to the single purpose entity and separateness
provisions of Borrower's Articles of Organization or Operating
Agreement; or
(x) withdraw as the Manager of the Borrower.
In addition to the foregoing, the Manager shall not, without the
written consent of the holder of the Security Instrument, take any
action set forth in items (i), (ii), (iii), (iv), (v), (vi), (vii),
(ix) or (x).
(e) The Manager has not and shall not: (i) merge into or
consolidate with any person or entity or dissolve, terminate or
liquidate in whole or in part, transfer or otherwise dispose of all or
substantially all of its assets or change its legal structure, without
in each case Lender's prior written consent; (ii) fail to preserve its
existence as an entity duly organized, validly existing and in good
standing (if applicable) under the laws of the jurisdiction of its
organization or formation, or without the prior written consent of
Lender, amend, modify, terminate or fail to comply with the provisions
of Manager's partnership agreement, articles or certificate of
incorporation, articles of organization, operating agreement, or
similar organizational documents, as the case may be, as same may be
further amended or supplemented, if such amendment, modification,
termination or failure to comply would adversely affect the ability of
Manager or Borrower to perform its obligations hereunder, under the
Note or under the Other Security Documents; (iii) own any subsidiary
or make any investment in, any person or entity (except for its 0.50%
ownership interest in the Borrower) without the prior written consent
of Lender; (iv) commingle its assets with the assets of any of its
general partners, managing members, shareholders, affiliates,
principals or of any other person or entity; (v) incur any debt,
secured or unsecured, direct or contingent (including guaranteeing any
obligation); (vi) fail to maintain its records, books of account and
bank accounts separate and apart from those of the general partners,
managing members, shareholders, principals and affiliates of Manager,
the affiliates of a general partner or managing member of Manager, and
any other person or entity; (vii) enter into any contract or agreement
with any general partner, managing member, shareholder, principal or
affiliate of Borrower or Manager, any Guarantor or any indemnitor, or
any general partner, managing member, shareholder, principal or
affiliate thereof, except upon terms and conditions that are
intrinsically fair and substantially similar to those that would be
available on an arms-length basis with third parties other than any
general partner, managing member, shareholder, principal or affiliate
of Borrower or Manager, any Guarantor or any indemnitor, or any
general partner, managing member, shareholder, principal or affiliate
thereof; (viii) seek the dissolution or winding up in whole, or in
part, of Manager; (ix) maintain its assets in such a manner that it
will be costly or difficult to segregate, ascertain or identify its
individual assets from those of any general partner, managing member,
shareholder, principal or affiliate of Manager, or any general
partner, managing member, shareholder, principal or affiliate thereof
or any other person or entity; (x) hold itself out to be responsible
for the debts of another person or entity; (xi) make any loans to any
third party; (xii) fail either to hold itself out to the public as a
legal entity separate and distinct from any other entity or person or
to conduct its business solely in its own name in order not (A) to
mislead others as to the identity with which such other party is
transacting business, or (B) to suggest that Manager is responsible
for the debts of any third party (including any general partner,
managing member, shareholder, principal or affiliate of Manager, or
any general partner, managing member, shareholder, principal or
affiliate thereof); (xiii) fail to maintain adequate capital for the
normal obligations reasonably foreseeable in a business of its size
and character and in light of its contemplated business operations;
(xiv) fail to preserve and keep in
MCF 415
Mortgage (AL)
Last revised 7/5/05
-42-
full force and effect its existence, good standing and qualification
to do business in the state in which the Premises is located; (xv)
fail to obtain and maintain in full force and effect, and abide by and
satisfy the material terms and conditions of, all material permits,
licenses, registrations and other authorizations with or granted by
any governmental authorities that may be required from time to time
with respect to the performance of its obligations under the Security
Instrument; (xvi) fail to hold regular meetings, as appropriate, to
conduct the business of the Manager, or fail to observe all customary
organizational and operational formalities; (xvii) fail to prepare its
own separate tax returns and financial statements; (xix) fail to use
separate stationery, invoices and checks; (xxi) assume, guarantee or
pay the debts or obligations of any other person or entity; (xx) fail
to pay its own liabilities and expenses only out of its own funds,
including without limitation paying salaries of its own employees from
its own funds; (xxi) fail to maintain sufficient number of employees
in light of its contemplated business operations; (xxii) acquire the
obligations or securities of its affiliates or owners, including
partners, members or shareholders, as appropriate; (xxiii) pledge its
assets for the benefit of any other person or entity other than the
holder of the Security Instrument; or (xxiv) fail to correct any known
misunderstanding regarding its separate identity.
(f) No transfer of any direct or indirect ownership interest in
the Manager such that the transferee owns more than a 49% interest in
the Manager (or such other interest as specified in the Security
Instrument or by a rating agency) may be made unless such transfer is
conditioned, among other things, upon those items set forth in the
Security Instrument and upon the delivery of an acceptable
non-consolidation opinion to the holder of the Security Instrument and
to any applicable rating agency concerning, as applicable, the
Manager, new transferee and/or their respective customers.
(n) Provided no Event of Default has occurred, the Borrower shall have the
one-time ability of electing in writing either Option 1 (Partial
Release of Vacant Land) or Option 2 (Expansion) set forth below, but
not both. Once an election to proceed under an Option has been made,
Borrower shall no longer have the ability and hereby forever waives
the ability to proceed under the other Option. Borrower shall remit to
Lender with its election a processing fee to Lender in the amount of
$5,000.00.
OPTION 1: (RELEASE OF VACANT LAND) Provided no Event of Default has
occurred and is continuing, and provided further the following terms
and conditions are fully performed and satisfied, Lender shall release
from this Security Instrument (the "Release") a portion of the vacant
undeveloped land at the Premises which Lender determines and agrees,
in its reasonable discretion, may be released from the Premises (the
"Release Parcel"). All evidence, opinions, reports, information and
other items Lender shall reasonably request to give effect to the
terms and conditions of this Section shall be delivered by Borrower to
Lender not less than forty-five (45) days prior to the date of the
desired Release and shall be as follows:
(i) The loan to value ratio for the Premises in which the Release
Parcel is located shall not exceed 65.0%, as determined by the Lender
utilizing generally-applicable underwriting standards for securitized
commercial mortgage loans based upon, (i) an updated appraisal
obtained by the Lender at the Borrower's expense, and (ii) the
Allocated Loan Amount attributed to the Premises in the Note;
(ii) Borrower shall deliver to Lender a written request for the
Release;
MCF 415
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Last revised 7/5/05
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(iii) Borrower shall provide Lender with evidence reasonably
acceptable to Lender that (A) all zoning and subdivision approvals of
governmental authorities have been granted so that the Release Parcel
and the portion of the Premises remaining after giving effect to the
Release (for the purposes of this Section, the "Remaining Parcel")
shall constitute separate legal tax parcels with sufficient parking to
meet the demands of the Remaining Parcel, all applicable zoning laws
and ordinances, and all Leases at the Remaining Parcel, and (B) from
and after the Release, no acts relating to development, subdivision,
construction or use on the Release Parcel shall affect, in any
respect, the compliance of the Remaining Parcel with any applicable
governmental rule or regulation;
(iv) Borrower shall provide Lender with evidence reasonably
acceptable to Lender that, following the Release, the Remaining Parcel
shall have available to it all necessary utility and other services
for its development, use, occupancy and operation, and adequate, free,
unimpeded and unencumbered access for pedestrian and vehicular ingress
and egress onto all adjacent public roads at such locations as are
reasonably necessary for the development, use, occupancy and its
present operation, including any and all easement agreements which
shall be in form and substance satisfactory to Lender;
(v) Borrower shall provide Lender with an updated survey of the
Remaining Parcel reasonably satisfactory to Lender, prepared by a
registered land surveyor and certified to Lender, its successors and
assigns, and the title insurer in form reasonably acceptable to Lender
containing only such encroachments, exceptions and state of facts as
are satisfactory to Lender in its reasonable discretion;
(vi) Borrower shall provide Lender with evidence reasonably
acceptable to Lender that the Remaining Parcel, including, without
limitation, all improvements thereon, shall be in compliance with all
applicable zoning laws (including parking ordinances and
requirements), land use and other governmental rules and regulations;
(vii) Borrower shall cause to be delivered to Lender an opinion
of counsel, in form and substance reasonably satisfactory to Lender,
that the Remaining Parcel shall remain subject to the lien of this
Instrument, and such other opinions as Lender shall reasonably
request;
(viii) Borrower shall procure from the title company which issued
the loan policy to Lender an endorsement to Lender's title insurance
policy reasonably acceptable to Lender which shall provide, inter
alia, that the lien and priority of this Security Instrument shall be
unaffected as a result of the Release of the Release Parcel and that
this Security Instrument shall continue to constitute a valid first
lien, and Borrower shall further cause such title company to issue
such further endorsements as Lender shall reasonably require;
(ix) Borrower shall pay all costs and expenses of the Release,
including without limitation, all third-party reports, title charges
and reasonable attorneys' fees and disbursements;
(x) Borrower shall simultaneously with the Release of the Release
Parcel transfer title to the Release Parcel to a person(s), party(ies)
or entity(ies) other than Borrower or any person, party or entity
owned or controlled by Borrower (the "Release Parcel Owner") or, if
such person, party or entity is owned or controlled by Borrower,
Borrower shall deliver to Lender a non-consolidation opinion letter in
form and substance satisfactory to Lender;
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(xi) If Lender reasonably determines that it is necessary,
Borrower shall provide to Lender (i) an opinion of counsel indicating
that the Release will not cause the then owner of the Note to fail to
qualify as a REMIC (a "REMIC Opinion"); and (ii) confirmation from the
applicable rating agencies that the Release will not result in a
qualification, downgrade or withdrawal of any credit rating then in
effect for any securities or certificates issued by the then owner of
the Note in connection with a securitization which includes the Note;
(xii) Borrower shall execute and/or deliver any and all
documents, instruments, agreements, approvals, consents, site plans or
other information relating to the location, size and development of
the Release Parcel as Lender may reasonably request;
(xiii) Borrower shall provide evidence reasonably satisfactory to
Lender that (i) any tenants at the Property required to approve the
Release have given such approval, and (ii) Borrower has complied with
any requirements applicable to the Release in any of the Leases,
reciprocal easement agreements or similar agreements and such Release
does not violate any of the provisions of such documents; and
(xiv) Borrower shall provide Lender with copies of the deed of
the Release Parcel to the Release Parcel Owner;
Notwithstanding anything in the foregoing to the contrary, if at the
time the Release occurs, this Security Instrument is held by a "real
estate mortgage investment conduit" or by an entity that qualifies for
treatment as a "REMIC Trust" under the Code, all conditions contained
herein which provide for the exercise of discretion by Lender (i.e.,
by requiring that documents or other items be "reasonably acceptable
to Lender" or "acceptable to the Lender in its reasonable discretion"
or through use of words with similar import) shall be construed as
permitting the Lender to reject a document or other item only if such
document or other item fails to satisfy generally-applicable
underwriting standards for securitized commercial mortgage loans,
employed at the time such Release occurs.
OR
OPTION 2 (EXPANSION): Notwithstanding anything herein to the contrary,
Lender shall not unreasonably withhold its consent to certain
alterations that may be made to the Improvements at the Premises in
connection with an expansion of the building at the Premises or the
addition of a building at the Premises (the "Expansion") provided all
of the following conditions are satisfied:
(i) No Event of Default has occurred and is continuing;
(ii) The tenant under the Plastipak Lease applicable to the
Premises has executed an amendment or modification of such lease in
form and substance acceptable to Lender, enlarging the demised
premises thereunder to include the Expansion at a rental rate and upon
terms and conditions no lower or less favorable then the terms of the
applicable Plastipak Lease prior to the amendment;
(iii) No default has occurred under any Plastipak Lease remaining
in effect and Plastipak remains open for business and operating under
each such Lease;
MCF 415
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Last revised 7/5/05
-45-
(iv) At least forty-five (45) days prior to the commencement of
the Expansion, Borrower requests in writing Lender's consent to the
Expansion and delivers to Lender for Lender's approval a copy of all
architectural plans, construction plans, drawings and site plans
related to the Expansion (collectively, the "Construction Plans"),
which shall be architecturally consistent with the existing
improvements at the Property;
(v) The use of the Expansion shall be for a use permitted under
the Plastipak Lease applicable to the Premises;
(vi) The construction of the Expansion is completed no later than
two years prior to the Maturity Date;
(vii) The Expansion shall be fully completed by Borrower in a
diligent and good and workmanlike manner in accordance with all
applicable laws, ordinances and regulations (including zoning);
(viii) Prior to construction of the Expansion, all permits,
variances, and approvals for the construction of the Expansion within
the Expansion Area are obtained and copies of same are delivered to
Lender;
(ix) Following construction of the Expansion and no later than
ten (10) days after receipt, Borrower shall deliver to Lender a copy
of the final unconditional certificate of occupancy for the Expansion;
(x) No mortgage, deed of trust, lien, borrowing, pledge or other
form of financing shall be obtained regarding or concerning the
Expansion;
(xi) During the construction of the Expansion, Borrower shall
provide Lender on a monthly basis copies of all receipted bills,
invoices, lien waivers and other such documents from each of the
contractors and materialmen which provided work or services in
connection with the Expansion sufficient to reflect that all materials
installed and work and labor performed in connection with the
construction of the Expansion have been paid for in full or will be
paid with the next installment payment;
(xii) Following completion of the Expansion, Borrower shall
deliver to Lender an endorsement to the mortgagee title insurance
policy issued to Lender updating the effective date of the policy to a
date which is after the completion of the Expansion and reflecting
that no mechanic's or other liens have been placed against the
Premises;
(xiii) If Lender reasonably determines that it is necessary,
Borrower shall provide to Lender (i) an opinion of counsel indicating
that the Expansion will not cause the then owner of the Note to fail
to qualify as a REMIC (a "REMIC Opinion"); and (ii) confirmation from
the applicable rating agencies that the Expansion will not result in a
qualification, downgrade or withdrawal of any credit rating then in
effect for any securities or certificates issued by the then owner of
the Note in connection with a securitization which includes the Note;
(xiv) Borrower shall reimburse Lender for any fees (including
fees for inspection, attorney's, engineer, architect, or inspector)
incurred by Lender in connection with the completion of the Expansion;
(xv) Prior to the commencement of construction, the Borrower
shall execute a fully recourse Completion Guaranty in form and
substance acceptable to the Lender; and
MCF 415
Mortgage (AL)
Last revised 7/5/05
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(xvi) Borrower shall deliver to Lender a final as-built ALTA/ACSM
Land Title Survey for the Premises within one month of the completion
of construction of the Expansion.
Failure to comply with the foregoing shall be an Event of Default
hereunder.
(o) For the first Transfer or Change in Ownership requested hereunder and
where (A) the Plastipak Leases remain in effect and shall remain in
effect after the proposed Transfer or Change in Ownership, (B) the
tenant thereunder remains (and shall after the Transfer or Change in
Ownership remain) the tenants identified in this Security Instrument
with no change in the ownership or beneficial interests of such
tenants having occurred, and (C) no material adverse change has
occurred in the financial condition of Plastipak; the Lender shall not
unreasonably withhold its consent in determining whether the Lender's
Underwriting Standards have been met under Section 10(b)(iii) if the
New Borrower has a net worth equal to or greater than XXXX Realty,
LLC. The foregoing shall not be deemed to modify any of the remaining
terms and conditions of Section 10 hereunder which must be satisfied
prior to any Transfer or Change in Ownership.
(p) For the first Transfer or Change in Ownership requested hereunder and
where (A) the Plastipak Leases remain in effect and shall remain in
effect after the proposed Transfer or Change in Ownership, (B) the
tenant thereunder remains (and shall after the Transfer or Change in
Ownership remain) the tenants identified in this Security Instrument
but the proposed Transfer or Change in Ownership contemplates a change
in the ownership or beneficial interests of such tenants; the Lender
shall not unreasonably withhold its consent in determining whether the
Lender's Underwriting Standards have been met under Section 10(b)(iii)
if the New Borrower has a net worth equal to or greater than both XXXX
Realty, LLC and Plastipak. The foregoing shall not be deemed to modify
any of the remaining terms and conditions of Section 10 hereunder
which must be satisfied prior to any Transfer or Change in Ownership.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
MCF 415
Mortgage (AL)
Last revised 7/5/05
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IN WITNESS WHEREOF, Borrower has executed this Mortgage, Security Agreement
and Assignment of Leases and Rents to be effective as of the day and year first
above written.
WITNESSES: XXXX Realty, LLC,
a Michigan limited liability company
/s/ Xxxxx X. Xxxxxxx By: XXXX Management, Inc.,
------------------------------------ a Michigan corporation,
Printed Name: its Manager
-----------------------
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------ ----------------------------------
Printed Name: Name: Xxxxxxx X. Xxxxxxx
---------------------- Title: Vice President and Treasurer
BORROWER:
ACKNOWLEDGMENT
STATE OF MICHIGAN )
) SS
COUNTY OF OAKLAND )
I, the undersigned, a Notary Public in and for said County in said State,
hereby certify that Xxxxxxx X. Xxxxxxx, whose name as Vice President and
Treasurer of XXXX Management, Inc., a Michigan corporation, the Manager of XXXX
Realty, LLC, a Michigan limited liability company, is signed to the foregoing
instrument, and, who is known to me, acknowledged before me on this day that,
being informed of the contents of the foregoing, as such Vice President and
Treasurer, and with full authority, he/she executed the same voluntarily for and
as the act of said limited liability company.
Given under my hand and seal of office on September 9, 2005.
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Notary Public
(NOTARIAL SEAL OR STAMP)
My Commission Expires: October 31, 2010
MCF 415
Mortgage (AL)
Last revised 7/5/05
-48-
EXHIBIT A
Legal Description
The real property situated in the County of Jefferson, State of
Alabama, described as follows:
MCF 415 [omitted]
Mortgage (AL)
Last revised 7/5/05
-49-
