EXHIBIT 10.2(b)
COMERICA Continuing Collateral Mortgage
(This is a Future Advance Mortgage) CLS LOAN
This Continuing Collateral Mortgage ("Mortgage") is made as of
January 21, 1999, by XXXXXXX & YALE, INC., A MASSACHUSETTS CORPORATION
(individually and collectively if more than one party ("Mortgagor"), located
at 00 Xxxxxxxxx Xxxx, Xxxxx, Xxx Xxxxxxxxx 00000 to COMERICA BANK, a Michigan
Banking Corporation ("Mortgagee"), located at 000 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000. As security for the purposes stated in this Mortgage,
Mortgagor mortgages, warrants, and assigns to Mortgagee, its successors and
assigns, the real property in the County of MACOMB, State of Michigan,
legally described as:
North I foot of Lot 92 and all of Lots 93 to 99, inclusive, FRASER
INDUSTRIAL SUBDIVISION, according to the recorded plat thereof, as recorded in
Plat Liber 58, Pages 43 and 44, Macomb County Records.
Tax Code Number: 00-00-000-000
Commonly Known As: 00000 Xxxxxxxx Xx., Xxxxxx, Xxxxxxxx
together with: (a) all related easements, hereditaments, appurtenances,
rights, licenses and privileges; (b) all buildings and improvements now or later
situated under, upon or over any of the above described land; (c) all the rents,
issues, profits, revenues, accounts and general intangibles arising from the
above described land, or relating to any business conducted by Mortgagor on it,
under present or future leases, licenses or otherwise, including, without limit,
all rights conferred by Act No. 210 of the Michigan Public Acts of 1953, as
amended; (d) all machinery, equipment, goods, fixtures, and articles of personal
property of every kind and nature (other than Household Goods, as defined by
12 CFR 227.12, as amended from time to time, unless such goods were purchased
with the proceeds of any loan secured by this Mortgage), now or later located
upon the above described land and useable in connection with any present or
future operation on the land (individually and collectively the "equipment")
including, without limit, all lighting, heating, cooling, ventilating,
air-conditioning, incinerating, refrigerating, plumbing, sprinkling,
communicating and electrical systems. It is agreed that all equipment shall
for the purposes of this Mortgage, unless Mortgagee shall otherwise elect, be
deemed conclusively to be real estate and mortgaged under this Mortgage; and
(e) all awards or payments, and interest on them, made with respect to the
Premises as a result of (i) any eminent domain proceeding, (4) any street
grade alteration, (iii) any loss of or damage to any building or other
improvement, (iv) any other injury to or decrease in the value of the
Premises, (v) any refund due on account of the payment of real estate taxes,
assessments or other charges levied against the Premises or (vi) any refund
of utility deposits or right to any tenant deposit (all of the above
individually and collectively the "Premises"). Unless otherwise indicated, a
reference to the "Premises" means all and/or any
part of the Premises, but excluding inventory, manufacturing machinery and
equipment, office equipment and furniture and all other goods used or useful by
Mortgagor In its manufacturing activities and business operations and not
constituting real estate fixtures used or useful in the care or maintenance of
the buildings.
This Mortgage is made to secure when due, whether by stated maturity,
demand, acceleration or otherwise, all existing and future indebtedness
("Indebtedness") to Mortgagee of XXXXXXX & YALE, INC., A MASSACHUSETTS
CORPORATION ("Borrower") and/or Mortgagor, including without limit payment of
EIGHT HUNDRED TWENTY-FOUR THOUSAND AND NO/100 DOLLARS, ($824,000.00) according
to certain evidence of indebtedness of even date. This reference to a dollar
amount does not limit the dollar amount secured by, this Mortgage. Indebtedness
includes, without limit, any and all obligations or liabilities of whatever
amount of Borrower and/or Mortgagor to Mortgagee, whether absolute or
contingent, direct or indirect, voluntary or involuntary, liquidated or
unliquidated, joint or several, known or unknown; any and all indebtedness,
obligations or liabilities for which Borrower and/or Mortgagor would otherwise
be liable to Mortgagee were it not for the invalidity, irregularity or
unenforceability of them by reason of any bankruptcy, insolvency or other law or
order of any kind, or for any other reason; any and all amendments,
modifications, renewals and/or extensions of any of the, above; all costs
incurred by Mortgagee in establishing, determining, continuing, or defending the
validity or priority of its lien security interest, or to protect the value of
the Premises, or for any appraisal, environmental audit, title examination or
title insurance policy relating to the Premises, or in pursuing its rights and
remedies under this Mortgage or under any other agreement between Mortgagee and
Borrower and/or Mortgagor; all costs incurred by Mortgagee in connection with
any suit or claim involving or against Mortgagee in any way related to the
Premises, the Indebtedness or this Mortgage; and all costs of collecting
Indebtedness; all of the above costs including, without limit, attorney fees
incurred by Mortgagee. Mortgagor agrees to pay Mortgagee, upon demand, all costs
incurred by Mortgagee which are Indebtedness, and until paid all costs shall
bear interest from the time incurred at the highest per annum rate applicable to
any of the Indebtedness, but not in excess of the maximum rate permitted by law.
Any reference in this Mortgage to attorney fees shall be deemed a reference to
all reasonable fees, charges, costs and expenses of both in-house and outside
counsel and paralegal, whether or not a suit or action is instituted, and to
court costs if a suit or action is instituted, and whether attorney fees or
court costs are incurred a the trial court level, on appeal, in a bankruptcy,
administrative or probate proceeding or otherwise. Notwithstanding the
foregoing, this Mortgage shall not secure that part of the Indebtedness, if any,
which constitutes a consumer loan, other than a consumer loan made at the same
time as this Mortgage and specifically referenced as being secured by this
Mortgage (and all extensions, renewals, modifications or replacement thereof).
If (and only if) this Mortgage is a Residential Future Advance
Mortgage, as defined by Michigan Compiled Laws, section 565.901 et seq., as
amended from time to time (the "Act"), then the following provision shall apply:
THIS MORTGAGE SECURES A MAXIMUM PRINCIPAL AMOUNT OF ________________ DOLLARS
($____________) ) plus the sum
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of any Protective Advance(s) (as defined by the Act), including without
limitation any advances made by Mortgagee to preserve the priority of the
Mortgage or the value of the Premises or for attorney fees, collection costs or
other expenses which Mortgagor has agreed to pay, plus all interest on all of
the above. IF THE BLANK LINES FOR THE DOLLAR AMOUNT IN THIS PARAGRAPH ARE NOT
COMPLETED, THEN THE MAXIMUM PRINCIPAL AMOUNT SHALL BE DEEMED TO BE FIVE (5)
TIMES THE DOLLAR AMOUNT FIRST REFERENCED ABOVE.
Mortgagor, on a continuing basis, warrants, covenants and agrees to and
with Mortgagee, which covenants, warranties and agreements, to the extent
permitted by law, shall be deemed to run with the land, as follows:
1. Mortgagor will pay to Mortgagee all Indebtedness according to the
terms of the relevant instruments evidencing it, and Mortgagor agrees that this
Mortgage is a continuing mortgage securing the payment of the Indebtedness.
2. Mortgagor has good, and indefeasible title, to the entire Premises
in fee simple and with full power to sell, mortgage and convey it; the Premises
are free of all easements, restrictions, liens, leases and encumbrances whether
now existing or later created, except those matters listed on attached Schedule
A (if any) to which this Mortgage is expressly subject, and Mortgagor will
warrant and defend the Premises against all other claims, Mortgagee shall have
the right, at its option and at such times as it, in its sole discretion deems
necessary, to take whatever action it may deem necessary to defend or uphold the
lien of this Mortgage or otherwise enforce any of its rights under this Mortgage
or any obligation secured by this Mortgage including, without limit, the right
to institute appropriate legal proceedings for these purposes. With respect to
the right, title, or lien of any person or entity which is superior to the lien
of this Mortgage, Mortgagee has the right, but not the obligation, to acquire
and/or pay off the holder of such right, title, or lien and add the amount so
paid to the Indebtedness.
3. Mortgagor shall not mortgage or pledge the Premises as security for
any other indebtedness or obligations. Mortgagor shall pay when due, and before
any interest, collection fees or penalties accrue or default occurs, all
payments required under any mortgages on the Premises, and all taxes,
assessments, and other charges and impositions levied, assessed or existing with
respect to (i) the Premises or (ii) the execution, delivery or recordation of
this Mort age or any note or other instrument evidencing or securing repayment
of the Indebtedness or the interest of Mortgagee in the Premises, and will
deliver to Mortgagee without demand official receipts showing these payments. If
Mortgagor fails to pay these mortgage payments, taxes, assessments, other
charges or impositions when due, or if Mortgagor fails to pay all interest,
collection fees and penalties accrued on them, Mortgagee, at its sole option,
may (but is not obligated to) pay them and the monies paid shall be added to the
Indebtedness. Mortgagor shall pay (before the same become liens or encumbrances
against the Premises) any and all obligations or liabilities for repairs or
improvements to the Premises or for any other goods, services, or utilities to
the Premises. At the sole option of Mortgagee, Mortgagor shall pay to Mortgagee
on the first day of each month a pro rata portion of all taxes, assessments,
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liens, mortgages, and other charges levied, assessed or existing on the Premises
in an amount sufficient to pay them when due, plus payments (based on single
item or aggregate analysis, as determined by Mortgagee under applicable law)
sufficient to maintain an additional balance of not more than one-sixth of that
amount, all as estimated by Mortgagee. In the event that sufficient funds have
been deposited with Mortgagee to cover the amount of these taxes, assessments,
liens, mortgages, and other charges when they become due and payable, Mortgagee
shall pay them. In the event that sufficient funds have not been deposited to
cover the amount of these taxes, assessments, liens, mortgages and other charges
at least fifteen (15) days prior to the time when they become due and payable,
Mortgagor shall immediately upon request by Mortgagee pay the amount of the
deficiency to Mortgagee. Mortgagee shall not be required to keep in a separate
account or to pay Mortgagor any interest or earnings whatever on the funds held
by Mortgagee for the payment of taxes, assessments, liens, mortgages, or other
charges pursuant to this paragraph or for the payment of insurance premiums
under paragraph (4) below, or on any other funds deposited, with Mortgagee in
connection with this Mortgage. If an Event of Default occurs under this
Mortgage, any funds then remaining on deposit with Mortgagee may be applied
against the Indebtedness immediately upon or at any time after the Event of
Default occurs, and without notice to Mortgagor. No lien holder junior to this
Mortgage may exercise any rights with respect to the Premises, and all rents and
other proceeds from the Premises shall be held in trust by the junior lienholder
as the property of Mortgagee, until satisfaction in full of the Indebtedness.
Nothing in this paragraph shall be considered a consent by Mortgagee to any
lien, mortgage or encumbrance, on the Premises unless set forth on attached
Schedule A, if any.
4. Mortgagor shall keep the buildings and all other improvements now or
later existing on the Premises constantly insured for the benefit of Mortgagee
against fire and other hazards and risks, including without limit vandalism and
malicious mischief, as Mortgagee may require and shall further provide flood
insurance (if the Premises are situated in a special flood hazard area as
determined by the Director of the Federal Emergency Management Agency or other
governing agency), loss of rents insurance, public, liability and product
liability insurance and any other insurance Mortgagee may require from time to
time, all in amounts and in forms and with companies as are satisfactory to
Mortgagee. Mortgagor shall deliver to Mortgagee the policies evidencing the
required insurance with premiums fully paid for one year in advance and with
standard mortgagee clauses satisfactory to Mortgagee. Renewals of the required
insurance (together with evidence of premium prepayment for one year in advance)
shall be delivered to Mortgagee at least thirty (30) days before the expiration
of any existing policies. All policies and renewals shall provide that they may
not be canceled or amended without giving Mortgagee thirty (30) days prior
written notice of cancellation or amendment. All policies and renewals shall be
held by, and are pledged to, Mortgagee, going with insurance premium rebates, as
additional security for the Indebtedness. Should Mortgagor fail to insure or
fail to pay the premiums on any required insurance or fail to deliver the
policies or renewals of them as provided above, Mortgagee may (but is not
obligated to) have the insurance issued or renewed (and pay the premiums on it,
for the account of Mortgagor) in amounts and with companies and at premiums as
Mortgagee deems appropriate. If Mortgagee elects to have insurance issued or
renewed to insure Mortgagee's
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interest, Mortgagee shall have no obligation to also insure Mortgagor's interest
or to notify Mortgagor of Mortgagee's actions. Any sums paid by Mortgagee for
insurance as provided above shall be added to the Indebtedness. In the event of
loss or damage, the proceeds of all required insurance shall be paid to
Mortgagee alone. No loss or damage shall itself reduce the Indebtedness.
Mortgagee and any of Mortgagee's employees is each irrevocably appointed
attorney-in-fact for Mortgagor and is authorized to adjust and compromise each
loss without the consent of Mortgagor, to collect, receive and receipt for the
insurance proceeds in the name of Mortgagee and Mortgagor and to endorse
Mortgagor's name upon any check in payment of the loss. The proceeds shall be
applied first toward reimbursement of all posts and expenses of Mortgagee in
collecting the proceeds (including, without limit, attorneys' fees) and then
toward payment of the indebtedness or any portion of it, whether or not then due
or payable and in whatever order of maturity as Mortgagee may elect, or
Mortgagee, at its option, may apply any or all the insurance proceeds to the
repair or rebuilding of the Premises. Application of proceeds by Mortgagee
toward later maturing installments of the Indebtedness shall not excuse
Mortgagor from making the regularly scheduled installment payments nor shall
such application extend the due date or reduce the amount of any of these
payments. Application of proceeds by Mortgagee toward payment of the
indebtedness shall constitute an acceleration and prepayment and shall subject
Mortgagor to any applicable prepayment premium or formula. In the event of a
foreclosure of this Mortgage, or the giving of a deed in lieu of foreclosure,
the purchaser or grantee of the Premises shall succeed to all of the rights of
Mortgagor under said insurance policies. At sole option of Mortgagee, Mortgagor
shall pay to Mortgagee on the first day of each month a pro rata portion of the
annual premiums (as estimated by Mortgagee) for the required insurance in an
amount sufficient to pay them when due, plus payments (based on single item or
aggregate analysis, as determined by Mortgagee under applicable law) sufficient
to maintain an additional balance of not more than one-sixth of that amount. In
the event that sufficient funds have been deposited with Mortgagee to cover the
amount of the insurance premium for required insurance when the premiums become
due and payable, Mortgagee shall pay the premiums. In the event that sufficient
funds have been deposited with Mortgagee to cover the amount of the insurance
premiums for required insurance when the premiums become due and payable,
Mortgagee shall pay the premiums. In the event that sufficient funds have not
been deposited with Mortgagee to pay the insurance premiums at least fifteen
(15) days prior to the time when they become due and payable, Mortgagor shall
immediately upon request pay the amount of this deficiency to Mortgagee.
Mortgagor shall promptly repair, replace or rebuild each part of the Premises
which may be damaged or destroyed by fire or other casualty or which may be
affected by any eminent domain proceedings, notwithstanding application by
Mortgagee of the insurance proceeds or eminent domain award to payment of the
Indebtedness.
5. Mortgagor shall abstain from commission of waste upon the Premises,
keep the Premises in good repair, and promptly comply with all laws, regulations
and requirements of all governmental bodies affecting the Premises. If Mortgagee
determines that the Premises requires inspection, testing, appraisal, repair,
care, alteration or attention of any kind, Mortgagee or its representatives may
(but is not obligated to) enter upon the Premises, and inspect, test, appraise,
repair, alter or maintain the Premises as Mortgagee may deem
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necessary, and Mortgagor shall reimburse Mortgagee upon demand for all resulting
costs and expenses incurred by Mortgagee. Any inspection, audit, appraisal or
examination by Mortgagee or its representative of the Premises or of information
or documents pertaining to the Premises is for the sole purpose of protecting
Mortgagee's interests under this Mortgage and is not for the benefit or
protection of Mortgagor or any third party. Mortgagee has no obligation to
provide Mortgagor or any third party with information concerning, or results of,
any inspection, audit, appraisal or examination by Mortgagee or its
representatives. If Mortgagee, in its sole discretion, discloses information to
Mortgagor this disclosure is for the sole protection of Mortgagee, does not
constitute an agreement to further disclosure and does not create a warranty by
Mortgagee as to the accuracy, sufficiency or any other aspect of the disclosure.
Mortgagee may spend money as Mortgagee deems essential to protect the value of
the Premises. Mortgagor shall not make or permit any other party to make any
material alterations, additions or improvements of any type to the Premises
(individually and collectively the "Improvements"), regardless of whether the
Improvements would increase the value of the Premises, without Mortgagee's prior
written consent. This consent may be withheld by Mortgagee in its sole
discretion. If Mortgagee consents to the making of any Improvements and the
Improvements are not completed with due diligence in accordance with the plans
and specifications approved in writing by Mortgagee, or if construction of the
Improvements should cease before completion for a period of thirty (30) days,
then and in either event it shall be an Event of Default under this Mortgage and
Mortgagee shall have all the rights and remedies provided in this Mortgage,
including without limitation, the right (but not the obligation) to enter or
cause entry to be made upon the Premises and complete the Improvements and its
costs shall be added to the Indebtedness. If any action is threatened or
commenced which affects Mortgagee's interest in the Premises, including, without
limit, building, environmental or zoning proceedings, Mortgagee may take such
action as it deems necessary to protect its interest and its costs shall be
added to the Indebtedness.
6. In the event the Premises is taken under power of eminent domain, or
by condemnation, the entire proceeds of the award shall be paid directly to
Mortgagee and applied toward reimbursement of all Mortgagee's costs and expenses
incurred in connection with collecting the award (including, without limit,
attorney fees), and the balance applied upon the Indebtedness whether or not
then due or payable in whatever manner Mortgagee deems advisable. Application by
Mortgagee of any condemnation award or portion of it toward the last maturing
installments of the Indebtedness shall not excuse Mortgagor from making the
regularly scheduled payments nor extend the due date or reduce the amount of
these payments. Application of any condemnation award by Mortgagee toward
payment of the Indebtedness shall constitute an acceleration and a prepayment
and shall subject Mortgagor to any applicable prepayment premium or formula.
Mortgagee or any of Mortgagee's employees is irrevocably appointed
attorney-in-fact and is duly authorized and empowered to receive, receipt for,
discharge and satisfy any condemnation award and judgment, whether joint or
several, on behalf of Mortgagor. Mortgagee shall not be liable for failure to
collect any condemnation award, regardless of the cause of such failure.
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7. The Indebtedness shall become due and payable immediately, without
notice, at the option of Mortgagee, if Mortgagor shall convey, assign or
transfer the Premises by deed, land contract or other instrument, or if title to
the Premises shall become vested in any other person or party in any manner
whatsoever or if there is any disposition (through one or more transactions) of
legal or beneficial title to a controlling interest of Mortgagor. In the event
ownership of the Premises becomes vested in a person or persons other than
Mortgagor (with or without the prior written approval of Mortgagee), Mortgagee
may (but shall not be obligated to) deal with and may enter into any contract or
agreement with the successor(s) in interest with reference to this Mortgage in
the same manner as with Mortgagor, without in any manner discharging or
otherwise affecting the lien of this Mortgage or Mortgagor's liability under
this Mortgage or upon the Indebtedness.
8. This Mortgage shall, as to any personal property covered by it, be
deemed to grant a security interest in the personal property pursuant to the
Uniform Commercial Code. Mortgagor agrees, upon request of Mortgagee from time
to time, to promptly furnish a list of personal property subject to this
Mortgage and, upon request by Mortgagee, to immediately execute, deliver and/or
file any mortgage, security agreement or financing statement to include
specifically this list of personal property. Upon the occurrence of any Event of
Default under this Mortgage, Mortgagee shall have all of the rights and remedies
of a secured party under the Uniform Commercial Code otherwise provided by law
or by this Mortgage including, without limit, the right to require Mortgagor to
assemble the personal property and make it available to Mortgagee at a place to
be designated by Mortgagee which is reasonably convenient to both parties, the
right to take possession of the personal property with or without demand and
with or without process of law and the right to sell and dispose of it and
distribute the proceeds according to law. Mortgagor agrees that any requirement
of reasonable notice shall be met if Mortgagee sends notice to Mortgagor at
least five (5) days prior to the date of sale, disposition or other event giving
rise to the required notice. Mortgagor agrees that the proceeds of any
disposition of the personal property may be applied by Mortgagee first to
Mortgagee's reasonable expenses in connection with the disposition including,
without limit, attorney fees, and then to payment of the Indebtedness.
9. As additional security for the payment and performance of the
Indebtedness, Mortgagor grants a security interest to Mortgagee in all deposit
or other accounts with Mortgagee and Mortgagor assigns to Mortgagee all its
right, title and interest in all written and oral leases and occupancy
agreements, now or later existing, covering the Premises (but without an
assumption by Mortgagee of liabilities of Mortgagor under any of these leases or
occupancy agreements by virtue of this assignment), and Mortgagor assigns to
Mortgagee the rents, issues and profits of the Premises. If an Event of Default
occurs under this Mortgage, Mortgagee may receive and collect the rents, issues
and profits personally or through a receiver so long as the Event of Default
exists and during the pendency of any foreclosure proceedings and during any
redemption period. Mortgagor agrees to consent to the appointment of a receiver
if this is believed necessary or desirable by Mortgagee to enforce its rights
under this Mortgage. Mortgagee shall at no time have any obligation to attempt
to collect rent or other amounts from any tenant or occupier of the Premises.
Mortgagee shall at
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no time have any obligation to enforce any other obligations owed by tenants or
occupiers of the Premises to Mortgagor. No action taken by Mortgagee under this
Mortgage shall make Mortgagee a "mortgagee in possession." Mortgagor shall at no
time collect advance rent under any lease or occupancy agreement pertaining to
the Premises in excess of one month (other than as a security deposit) and
Mortgagee shall not be bound in any respect by any rent prepayment in violation
of this prohibition. The assignment of licenses and permits under this Mortgage
shall not be construed as a consent by Mortgagee to any license or permit so
assigned, or to impose upon Mortgagee any obligations with respect to them.
Mortgagor shall not cancel or amend any of the licenses and permits assigned
(nor permit any of them to terminate if they are necessary or desirable for the
operation of the Premises) without first obtaining the written approval of
Mortgagee. This paragraph shall not be applicable to any license or permit that
terminates if it is assigned without the consent of another party (other than
Mortgagor), unless this consent has been obtained nor shall this paragraph be
construed as a present assignment of any license or permit that Mortgagor is
required by law to hold. Mortgagor shall comply with and perform as required all
obligations and restrictions imposed upon Mortgagor or the Premises under
applicable deed restrictions, restrictive covenants, easements, leases, land
contracts, condominium or planned unit development documents, or other
agreements affecting the Premises, but this is not a consent by Mortgagee to
take subject to any of these agreements unless specifically set forth on
attached Schedule A, if any, and Mortgagee does not assume any obligations under
these agreements. Mortgagor shall promptly provide Mortgagee with certificates
of occupancy, licenses, rent rolls, income and expense statements and other
documents and information pertaining to the Premises and its operations as
Mortgagee, from time to time, may request.
10. (a) Mortgagor represents and covenants that Mortgagor has not used
Hazardous Materials (as later defined) on or affecting the Premises in any
manner which violates Environmental Laws (as later defined), that there is no
condition concerning the Premises which could require remediation pursuant to
Environmental Laws, and that, to the best of Mortgagor's knowledge, no prior
owner of the Premises or any current or prior occupant has used Hazardous
Materials on or affecting the Premises in any manner which violates
Environmental Laws. Mortgagor covenants and agrees that neither it nor any
occupant shall use, introduce or maintain Hazardous Materials on the Premises
unless done in strict compliance with all Environmental Laws; (b) Mortgagor
shall conduct and complete all investigations, environmental audits, studies,
sampling and testing, and all remedial, removal and other actions necessary to
clean up and remove all Hazardous Materials on or affecting the Premises,
whether caused by Mortgagor or a third party, in accordance with all
Environmental Laws to the satisfaction of Mortgagee, and in accordance with the
orders and directives of all federal, state and local governmental authorities,
and Mortgagor shall notify Mortgagee in writing prior to taking, and continually
after that of the status of, all such actions. Mortgagor shall, promptly upon
Mortgagee's request, provide Mortgagee with copies of the results of all such
actions and all related documents and information. Any remedial, removal or
other action by Mortgagor shall not be deemed a cure or waiver of any breach of
this paragraph 10 due to the presence or use of Hazardous Materials on or
affecting the Premises. Additionally, Mortgagor shall defend, indemnify and hold
harmless Mortgagee, its employees, agents,
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shareholders, officers and directors, from and against any and all claims,
demands, penalties, fines, liabilities, settlements, damages, costs or expenses
(including, without limit, attorney fees) of whatever kind arising out of or
related to (i) the presence, disposal, release or threatened release of any
Hazardous Materials on, from or affecting the Premises or the soil, water, air,
vegetation, buildings, personal property, persons or animals on the Premises,
(ii) any personal injury (including, without limit, wrongful death) or property
damage (real or personal) arising out of or related to these Hazardous
Materials, (iii) any lawsuit brought or threatened, settlement reached or
government order related to these Hazardous Materials, (iv) the cost of removal
of Hazardous Materials from any portion of the Premises, (v) taking necessary
precautions to protect against the release of Hazardous Materials on or
affecting the Premises, (vi) complying with all Environmental Laws and/or (vii)
any violation of Environmental Laws or requirements of Mortgagee, which are in
any way related to Hazardous Materials including, without limit, attorneys and
consultants' fees (the attorneys and consultants to be selected by Mortgagee),
investigation and laboratory fees and environmental studies required by
Mortgagee (whether prior to foreclosure, or otherwise). Upon the request of
Mortgagee, Mortgagor and any guarantor shall execute a separate indemnity
consistent with this paragraph; (c) Mortgagor has never received any notice
("Environmental Complaint") of any potential violation of Environmental Laws
with respect to Mortgagor or the Premises (and, within five (5) days of receipt
of any Environmental Complaint, Mortgagor shall give Mortgagee a copy of it),
and to the best of Mortgagor's knowledge, there have been no actions commenced
or threatened by any party with respect to Mortgagor or the Premises for
noncompliance with any Environmental Laws; (d) In the event this Mortgage is
foreclosed or Mortgagor tenders a deed in lieu of foreclosure, Mortgagor shall
deliver the Premises to Mortgagee, purchaser or grantee, as the case may be,
free of Hazardous Materials so that the condition of the Premises shall not be a
violation of any Environmental Laws; (e) Upon ten (10) days notice to Mortgagor
(except in an emergency or where not practical under applicable law, in which
case notice is waived), and without limitation of Mortgagee's other rights under
this Mortgage or elsewhere, Mortgagee has the right, but not the obligation, to
enter on the Premises and to take those actions as it deems appropriate to
investigate or test for, clean up, remove, resolve, minimize the impact of or
advise governmental agencies of the possible existence of any Hazardous
Materials upon Mortgagee's receipt of any notice from any source asserting the
existence of any Hazardous Materials or an Environmental Complaint pertaining to
the Premises which, if true, could result in an order, suit or other action
against Mortgagor or any part of the Premises which, in the, sole opinion of
Mortgagee, could jeopardize its security under this Mortgage. Any such actions
conducted by Mortgagee shall be solely for the benefit of and to protect the
interests of Mortgagee and shall not be relied upon Mortgagor or any third party
for any purpose. By conducting any such actions, Mortgagee does not assume
control over the environmental affairs or operations of Mortgagor nor assume any
liability of Mortgagor or any third party; (f) The provisions of this paragraph
10 shall be in addition to all other obligations and liabilities Mortgagor may
have to Mortgagee at common law or pursuant to any other agreement, and shall
survive, (i) the repayment of the Indebtedness, (ii) the satisfaction of all
other obligations of Mortgagor under this Mortgage and under the other loan
documents, (iii) the discharge of this Mortgage, and (iv) the foreclosure of
this Mortgage or acceptance of a deed in lieu of foreclosure; and (g) For
purposes of this
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Mortgage, (i) "Hazardous Materials" means each and all of the following:
hazardous materials and/or substances as defined in any Environmental Law,
asbestos, petroleum, petroleum by-products, natural gas, flammable explosives,
radioactive materials, and toxic materials, and (ii) "Environmental Laws" mean
any and all federal, state, local or other laws (whether under common law, by
legislative action or otherwise), rules, policies, ordinances, directives,
orders, statutes, or regulations an object of which is to regulate or improve
health, safety, or the environment.
11. Upon the occurrence of any of the following events (each an "Event
of Default"), Mortgagor shall be in default under this Mortgage: (a) Any failure
to pay the Indebtedness or any other indebtedness when due, by acceleration or
otherwise; (b) Any failure to comply with, or breach of, any term of this
Mortgage, or any other agreement between Borrower, Mortgagor, or any guarantor
of any of the Indebtedness ("guarantor") and Mortgagee; (c) Any warranty,
representation, or other information made, given or furnished to Mortgagee by or
on behalf of Borrower, Mortgagor, or any guarantor shall be, or shall prove to
have been, false or materially misleading when made, given, or furnished; (d)
Any loss, theft, substantial damage or destruction to or of any of the Premises,
or the issuance or filing of any attachment, levy, garnishment or the
commencement of any proceeding in connection with any of the Premises or of any
other judicial process of, upon or in respect of Borrower, Mortgagor, any
guarantor, or any of the Premises; (e) Sale or other disposition by Borrower,
Mortgagor, or any guarantor of any substantial portion of its assets or
property; or voluntary suspension of the transaction of business by Borrower,
Mortgagor, or any guarantor; or death, dissolution, termination of existence,
merger, consolidation, insolvency, business failure, or assignment for the
benefit of creditors of or by Borrower, Mortgagor, or any guarantor; or
commencement of any proceedings under any state or federal bankruptcy or
insolvency laws or laws for the relief of debtors by or against Borrower,
Mortgagor, or any guarantor; or the appointment of a receiver, trustee, court
appointee, sequestrator or otherwise, for all or any part of the property of
Borrower, Mortgagor, or any guarantor; (f) Default under any mortgage or
security agreement against any of the Premises; or (g) Mortgagee deems itself
insecure, in good faith believing that the prospect of payment of the
Indebtedness or performance of this Mortgage is impaired or shall fear
deterioration, removal, or waste of the Premises.
12. Acceleration of the Indebtedness as provided in this Mortgage shall
trigger any applicable prepayment premium or formula. Without limiting when a
prepayment premium may be due, it is agreed that, at any time after
acceleration, a tender of payment of the amount necessary to satisfy the entire
Indebtedness by or on behalf of Mortgagor or otherwise, must include any
applicable prepayment premium or formula.
13. Immediately upon the occurrence of any Event of Default, Mortgagee
shall have the option to do any or all of the following: (a) Declare the entire
unpaid amount of the Indebtedness, including, without limit, accrued and unpaid
interest on it and any applicable prepayment premium or formula, and all other
charges payable by Mortgagor to Mortgagee, to be immediately due and payable
and, at Mortgagee's option, (i) to bring suit for the same, or (ii) to take all
steps and institute all other proceedings that Mortgagee deems necessary to
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enforce payment of the Indebtedness and performance under this Mortgage and to
protect the lien of this Mortgage; (b) Commence foreclosure proceedings against
the Premises through judicial proceedings or by advertisement, at the option of
Mortgagee. The commencement by Mortgagee of foreclosure proceedings shall be
deemed an exercise by Mortgagee of its option to accelerate the Indebtedness,
unless such proceedings on their face specifically indicate otherwise. Mortgagor
grants power to Mortgagee to sell the Premises or to cause the same to be sold
at public sale, and to convey the same to the purchaser, in a single parcel or
in several parcels at the option of Mortgagee; (c) Procure new or cause to be
updated abstracts, tax histories, title insurance, or title reports; (d) Obtain
a receiver to manage the Premises and collect the rents, profits and income from
it; (e) Contest the amount or validity of any taxes applicable to the Premises
by appropriate proceedings either in Mortgagee's name, Mortgagor's name or
jointly with Mortgagor. Mortgagor shall execute and deliver to Mortgagee, upon
demand, whatever documents and information Mortgagee determines may be necessary
or proper to so contest the taxes or to secure payment of any resulting refund.
Mortgagor shall reimburse Mortgagee for all costs and expenses, including,
without limit, attorney fees, incurred in connection with each tax contest
proceeding. All refunds resulting from each tax contest proceeding shall belong
to Mortgagee to be applied against the Indebtedness with the surplus, if any, to
be paid to Mortgagor. Mortgagee and any of its employees is each irrevocably
appointed attorney-in-fact for Mortgagor and is authorized to execute and
deliver in the name of Mortgagor those documents deemed necessary or proper by
Mortgagee to carry out any tax contest proceeding or receive any resulting
refunds; and/or (f) In the event of any sale of the Premises by foreclosure,
through judicial proceedings, by advertisement or otherwise, apply the proceeds
of any such sale in the following order or such other order as Mortgagee may
elect: to (i) all expenses incurred for the collection of the Indebtedness and
the foreclosure of this Mortgage including, without limit, attorney fees; (ii)
all sum expended or incurred by Mortgagee directly or indirectly in carrying out
terms, covenants and agreements of or under this Mortgage or any related
document, together with interest as provided in this Mortgage; (iii) all accrued
and unpaid interest and late payment charges upon the Indebtedness; (iv) any
applicable prepayment premium or formula; (v) the unpaid principal amount of the
Indebtedness; and (vi) the surplus, if any, paid to Mortgagor unless a court of
competent jurisdiction decrees otherwise.
WARNING: THIS MORTGAGE CONTAINS A POWER OF SALE AND UPON DEFAULT MAY BE
FORECLOSED BY ADVERTISEMENT. IN FORECLOSURE BY ADVERTISEMENT AND THE RELATED
SALE OF THE PREMISES, NO HEARING IS REQUIRED AND THE ONLY NOTICE REQUIRED IS TO
PUBLISH NOTICE IN A LOCAL NEWSPAPER AND TO POST A COPY OF THE NOTICE ON THE
PREMISES. MORTGAGOR WAIVES ALL RIGHTS UNDER THE CONSTITUTION AND LAWS OF THE
UNITED STATES AND THE STATE OF MICHIGAN TO A HEARING PRIOR TO SALE IN CONNECTION
WITH FORECLOSURE BY ADVERTISEMENT AND ALL NOTICE REQUIREMENTS EXCEPT AS SET
FORTH IN THE MICHIGAN STATUTE PROVIDING FOR FORECLOSURE BY ADVERTISEMENT.
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14. No single or partial exercise, or delay in the exercise, of any
right or power under this Mortgage, shall preclude other or further exercise of
the rights and powers under this Mortgage. The unenforceability of any provision
of this Mortgage shall not affect the enforceability of the remainder. This
Mortgage constitutes the entire agreement of Mortgagor and Mortgagee with
respect to the subject matter of this Mortgage. No amendment of this Mortgage
shall be effective unless the same shall be in writing and signed by Mortgagor
and an authorized officer of Mortgagee. If there is more than one Mortgagor, all
undertakings, warranties and covenants made by Mortgagor and all rights and
powers given to Mortgagee are made or given jointly and severally. This Mortgage
shall be binding on Mortgagor and Mortgagee and on Mortgagor's and Mortgagee's
heirs, legal representatives, successors and assigns including, without limit,
any debtor in possession or trustee in bankruptcy for Mortgagor. This shall not
be deemed a consent by Mortgagee to a conveyance by Mortgagor of all or part of
the Premises or of any ownership interest in Mortgagor. Mortgagee may sell,
assign or grant participations in any of the Indebtedness and any related
obligations, including, without limit, this Mortgage. Mortgagee may provide
information relating to this Mortgage or relating to Mortgagor to Mortgagee's
parent, affiliates, subsidiaries, service providers, assignees and participants.
In the event of foreclosure of this Mortgage or the enforcement by Mortgagee of
any other remedies under this Mortgage, Mortgagor waives any right otherwise
available in respect to marshalling of assets which secure the Indebtedness or
to require Mortgagee to pursue its remedies against any other assets or any
other party. Upon full and final payment of the Indebtedness and performance by
Mortgagor of all its other obligations under this Mortgage, except as otherwise
provided in paragraphs 10(f) and 20, the parties shall automatically each fully
and finally release and discharge the other from any claim, liability or
obligation in connection with this Mortgage and the Indebtedness. This Mortgage
shall in all respects be governed by and construed in accordance with the laws
of the State of Michigan.
15. Promptly upon the request of Mortgagee, Mortgagor shall execute,
acknowledge and deliver all further documents, and do all further acts as
Mortgagee may require in its sole discretion to confirm and protect the lien of
this Mortgage or otherwise to accomplish the purposes of this Mortgage.
16. Nothing in this Mortgage shall be construed to preclude Mortgagee
from pursuing any available remedy provided by law for the collection of the
Indebtedness or enforcement of its rights upon an Event of Default. Nothing in
this Mortgage shall reduce or release any rights or security interests of
Mortgagee contained in any existing agreement between Borrower, Mortgagor, or
any guarantor and Mortgagee. No waiver of default or consent to any act by
Mortgagor shall be effective unless in writing and signed by an authorized
officer of Mortgagee. No waiver of any default or forbearance on the part of
Mortgagee in enforcing any of its rights under this Mortgage shall operate as a
waiver of any other default or of the same default on a future occasion or of
any rights.
17. At the sole option of Mortgagee, this Mortgage shall become
subordinate, in whole or in part (but not with respect to priority as to
insurance proceeds or any eminent domain award) to any or all leases and/or
occupancy agreements of the Premises upon the
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execution by Mortgagee, and recording in the appropriate official county records
where the premises are located, of a unilateral declaration to that effect.
18. All notices and demands required or permitted to be given to
Mortgagor shall be deemed given when delivered to Mortgagor or when placed in an
envelope addressed to Mortgagor at the address above, or at such other address
as Mortgagee may have on its records, and deposited, with postage, in a
depository under the custody of the United States Postal Service or delivered to
an overnight delivery courier. The mailing may be certified, first class or
overnight delivery mail.
19. To the extent that any of the Indebtedness is payable upon demand,
nothing contained in this Mortgage shall modify the terms and conditions of that
Indebtedness nor prevent Mortgagee from making demand, without notice and with
or without reason, for immediate payment of any or all of that Indebtedness at
any time(s), whether or not an Event of Default has occurred.
20. Notwithstanding any prior revocation, termination or discharge of
this Mortgage, (except as to the rights of subsequent intervening bona fide
purchasers or lienholders) the effectiveness of this Mortgage shall
automatically continue or be reinstated in the event that (a) any payment
received or credit given by Mortgagee in respect of the Indebtedness is
returned, disgorged or rescinded as a preference, impermissible setoff,
fraudulent conveyance, diversion of trust funds, or otherwise under any
applicable law, in which case this Mortgage shall be enforceable as if the
returned, disgorged or rescinded payment or credit had not been received or
given, whether or not Mortgagee relied upon this payment or credit or changed
its position as a consequence of it; or (b) any liability is sought to be
imposed against Mortgagee relating to any matter as to which Mortgagor agreed to
indemnify Mortgagee under this Mortgage, including, without limit, as to the
presence of Hazardous Materials on, in or about the Premises, whether this
matter is known or unknown, now or later exists (excluding only matters which
arise after any acquisition by Mortgagee of the Premises, by foreclosure, deed
in lieu of foreclosure or otherwise, to the extent due to the wrongful act or
omission of Mortgagee), in which case this Mortgage shall be enforceable to the
extent of all liability, costs and expenses (including, without limit, attorney
fees) incurred by Mortgagee as the direct or indirect result thereof. In the
event of continuation or reinstatement of this Mortgage, Mortgagor agrees upon
demand by Mortgagee to execute and deliver to Mortgagee those documents which
Mortgagee determines are appropriate to further evidence (in the public records
or otherwise) this continuation or reinstatement, although the failure of
Mortgagor to do so shall not affect in any way the reinstatement or
continuation. If Mortgagor does not execute and deliver to Mortgagee upon demand
such documents, Mortgagee and each employee is irrevocably appointed (which
appointment is coupled with an interest) the true and lawful attorney of
Mortgagor (with full power of substitution) to execute and deliver such
documents in the name and on behalf of Mortgagor.
21. MORTGAGOR AND MORTGAGEE ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY
IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED.
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EACH PARTY, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH
COUNSEL OF THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL
BENEFIT, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING
THE PERFORMANCE, OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS MORTGAGE OR
THE INDEBTEDNESS.
22. Additional provisions:
Mortgagor will be required to provide Mortgagee with annual CPA
prepared financial statements prepared on an audited basis due within 90 days of
each fiscal year end, and provide annual personal financial statements of
personal Guarantor due within 90 days of each year end.
IN WITNESS WHEREOF, Mortgagor has signed and delivered this Mortgage
the day and year first written above.
RECORDING REQUIREMENTS: Two witnesses are required for each Mortgagor.
Type or print name of each Mortgagor, Witness and Notary beneath the respective
signature line.
WITNESSES: MORTGAGOR
XXXXXXX & YALE, INC., A
MASSACHUSETTS CORPORATION
/s/ J. Xxxx Xxxxx By: /s/ Xxxxx Xxxxxxx
---------------------- --------------------------------------
/s/ Xxxxxx X. Xxxxx Its: Senior Vice President and Treasurer
---------------------- --------------------------------------
STATE OF MA
COUNTY OF SUFFOLK
The foregoing instrument was acknowledged before me on January 21,
1999, by Xxxxx Xxxxxxx of XXXXXXX & YALE, INC., A MASSACHUSETTS CORPORATION, on
behalf of said corporation.
/s/ Xxxxx X. Romonisk
Notary Public Suffolk County, MA
My commission expires: 3/10/2000
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Prepared by and when recorded return to:
Xxxxx X. Xxxxx (MC:3226)
COMERICA BANK
X.X. XXX 00000
XXXXXXX, XXXXXXXX 00000-0000
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