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MORTGAGE
from
TELEX COMMUNICATIONS, INC., Mortgagor
to
THE CHASE MANHATTAN BANK, as Administrative Agent, Mortgagee
DATED AS OF FEBRUARY 2,1998
This Mortgage secures future advances and is a future advance mortgage under Act
348 of the Public Acts of 1990 (MCLA 565.901 et seq.).
Prepared by and after recording, please return to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
a partnership which includes
professional corporations
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxxx Xxxxxx Xxxxx, Esq.
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MICHIGAN
MORTGAGE
THIS MORTGAGE, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT
AND FIXTURE FILING, dated as of February 2, 1998, is made by TELEX
COMMUNICATIONS, INC., a Delaware corporation (formerly known as EV
International, Inc. ("MORTGAGOR"), whose address is 0000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxxx, XX 00000, to THE CHASE MANHATTAN BANK, a New York banking
corporation whose address is 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as
Administrative Agent (in such capacity, "MORTGAGEE") for the several banks and
other financial institutions (the "LENDERS") from time to time parties to the
Credit Agreement dated as of May 6, 1997 among GST Acquisition Corp., Xxxxxx
Xxxxxxx Senior Funding, Inc. ("XXXXXX XXXXXXX") and Beneficiary, as amended by
Amendment No. 1 dated as of February 2, 1998 (the "AMENDMENT") among Grantor,
Xxxxxx Xxxxxxx and Mortgagee (as the same may be further amended, supplemented,
waived or otherwise modified from time to time the "CREDIT AGREEMENT").
References to this "Mortgage" shall mean this instrument and any and all
renewals, modifications, amendments, supplements, extensions, consolidations,
substitutions, spreaders and replacements of this instrument. Capitalized terms
used and not otherwise defined herein shall have the meanings assigned thereto
in the Credit Agreement.
Background
A. Pursuant to an Exchange Agreement, dated as of January 30, 1998
(together with all other documents delivered in connection therewith, the
"TELEX/EVI MERGER DOCUMENTS"), EV International, Inc. ("EVI") and Telex
Communications, Inc., a Delaware corporation, have effectuated a merger of Telex
Communications, Inc. with and into EVI, with EVI continuing as the surviving
corporation, in the process changing its name to Telex Communications, Inc.
B. Mortgagor is the owner of the parcel(s) of real property
described on Schedule A attached hereto (such real property, together with all
of the buildings, improvements, structures and fixtures now or subsequently
located thereon (the "IMPROVEMENTS"), being collectively referred to as the
"REAL ESTATE").
C. Pursuant to the terms of the Credit Agreement, the Lenders have
agreed, among other things, to make the Loans and the Issuing Lender has agreed
to issue, and the L/C Participants have agreed to acquire undivided
participating interests in, the Letter(s) of Credit for the account of the
Borrower upon the terms and subject to the conditions set forth in
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the Credit Agreement which conditions include the grant by Mortgagor to
Mortgagee of a first lien upon and perfected security interest in, among other
things, all estate, right, title and interest of Mortgagor in and to the Real
Estate pursuant to the terms hereof.
D. It is a condition precedent to the effectiveness of the Amendment
that Mortgagor executes and delivers this Deed of Trust.
Granting Clauses
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Mortgagor agrees that to secure:
(a) the repayment of principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Loan Party, whether or
not a claim for post-filing or post-petition interest is allowed in such
proceeding) the Loans (as they may be evidenced by the Notes from time to
time) and all other obligations (including the Reimbursement Obligations)
and liabilities of Mortgagor to Mortgagee, the Issuing Lender and the
Lenders, whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter incurred, which may arise under, out
of, or in connection with, the Credit Agreement, the Loans, the Letters of
Credit, the Security Documents, any Guarantee Obligation of Mortgagor as
to which any Lender is a beneficiary, any Permitted Hedging Arrangement
with any Lender or any banking affiliate of any Lender (whether entered
into directly, or guaranteed by Mortgagor), the Guarantee and Collateral
Agreement dated as of May 6, 1997 between Telex Communications, Inc.,
Telex Communications Group, Inc., TCI Holdings Corp. and Mortgagee (the
"GUARANTEE") or any other document made, delivered or given in connection
therewith, in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees, charges and disbursements of
counsel to the Administrative Agent, the Issuing Lender or any Lender that
are required to be paid by any Loan Party pursuant to the Credit
Agreement) (the items set forth above being referred to collectively as
the "INDEBTEDNESS"); and
(b) the performance of all covenants, agreements, obligations and
liabilities of Mortgagor (the "OBLIGATIONS") under or pursuant to the
provisions of the Credit Agreement, the Loans, this Mortgage, the
Guarantee, any other document securing
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payment of the Indebtedness (the "SECURITY DOCUMENTS") and any amendments,
supplements, extensions, renewals, restatements, replacements or
modifications of any of the foregoing (the Credit Agreement, the Loans,
the Letters of Credit, this Mortgage, the Guarantee, that certain
Assignment of Rents of even date herewith (the "Assignment of Rents") and
all other documents and instruments from time to time evidencing, securing
or guaranteeing the payment of the Indebtedness or the performance of the
Obligations, as any of the same may be amended, supplemented, extended,
renewed, restated, replaced or modified from time to time, are
collectively referred to as the "LOAN DOCUMENTS");
MORTGAGOR HEREBY GRANTS TO MORTGAGEE A LIEN UPON AND A SECURITY INTEREST IN, AND
HEREBY MORTGAGES AND WARRANTS, GRANTS, ASSIGNS, TRANSFERS AND SETS OVER TO
MORTGAGEE:
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever of
Mortgagor, in possession or expectancy, in and to the Real Estate or any
part thereof;
(C) all right, title and interest of Mortgagor in, to and under all
easements, rights of way, gores of land, streets, ways, alleys, passages,
sewer rights, waters, water courses, water and riparian rights,
development rights, air rights, mineral rights and all estates, rights,
titles, interests, privileges, licenses, tenements, hereditaments and
appurtenances belonging, relating or appertaining to the Real Estate, and
any reversions, remainders, rents, issues, profits and revenue thereof and
all land lying in the bed of any street, road or avenue, in front of or
adjoining the Real Estate to the center line thereof;
(D) all right, title and interest of Mortgagor in and to all of the
fixtures, chattels, business machines, machinery, apparatus, equipment,
furnishings, fittings and articles of personal property of every kind and
nature whatsoever, and all appurtenances and additions thereto and
substitutions or replacements thereof (together with, in each case,
attachments, components, parts and accessories) currently owned or
subsequently acquired by Mortgagor and now or subsequently attached to, or
contained in or used or usable in any way in connection with any operation
or letting of the Real Estate, including but without limiting the
generality of the foregoing, all screens, awnings, shades, blinds,
curtains, draperies, artwork, carpets, rugs, storm doors and windows,
furniture and furnishings, heating, electrical, and mechanical equipment,
lighting, switchboards, plumbing, ventilating, air conditioning and
air-cooling apparatus, refrigerating, and incinerating equipment,
escalators, elevators, loading and
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unloading equipment and systems, stoves, ranges, laundry equipment,
cleaning systems (including window cleaning apparatus), telephones,
communication systems (including satellite dishes and antennae),
televisions, computers, sprinkler systems and other fire prevention and
extinguishing apparatus and materials, security systems, motors, engines,
machinery, pipes, pumps, tanks, conduits, appliances, fittings and
fixtures of every kind and description (all of the foregoing in this
paragraph (D) being referred to as the "EQUIPMENT");
(E) all right, title and interest of Mortgagor in and to all
substitutes and replacements of, and all additions and improvements to,
the Real Estate and the Equipment, subsequently acquired by or released to
Mortgagor or constructed, assembled or placed by Mortgagor on the Real
Estate, immediately upon such acquisition, release, construction,
assembling or placement, including, without limitation, any and all
building materials to be used by Mortgagor whether stored at the Real
Estate or offsite, and, in each such case, without any further mortgage,
conveyance, assignment or other act by Mortgagor;
(F) all right, title and interest of Mortgagor in, to and under all
leases, subleases, underlettings, concession agreements, management
agreements, licenses and other agreements relating to the use or occupancy
of the Real Estate or the Equipment or any part thereof, now existing or
subsequently entered into by Mortgagor and whether written or oral and all
guarantees of any of the foregoing (collectively, as any of the foregoing
may be amended, restated, extended, renewed or modified from time to time,
the "LEASES"), and all rights of Mortgagor in respect of cash and
securities deposited thereunder and the right to receive and collect the
revenues, income, rents, issues and profits thereof, together with all
other rents, royalties, issues, profits, revenue, income and other
benefits arising from the use and enjoyment of the Mortgaged Property (as
defined below) (collectively, the "RENTS") including, but not limited to,
all rights conferred by Act No. 210 of the Michigan Public Acts of 1953 as
amended by Act No. 151 of the Michigan Public Acts of 1966 (MCLA 554.231
et seq.), and Act No. 228 of the Michigan Public Acts of 1925 as amended
by Act No. 55 of the Michigan Public Acts of 1933 (MCLA 554.211 et seq.);
(G) all books and records relating to or used in connection with the
operation of the Real Estate or the Equipment or any part thereof;
(H) all right, title and interest of Mortgagor, to the extent
assignable, in and to (i) all unearned premiums under insurance policies
now or subsequently obtained by Mortgagor relating to the Real Estate or
Equipment, (ii) any such insurance policies, (iii) all proceeds of any
such insurance policies (including title insurance policies)
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including the right to collect and receive such proceeds, subject to the
provisions relating to insurance generally set forth below, and (iv) all
awards and other compensation, including the interest payable thereon and
the right to collect and receive the same, made to the present or any
subsequent owner of the Real Estate or Equipment for the taking by eminent
domain, condemnation or otherwise, of all or any part of the Real Estate
or any easement or other right therein, subject to the provisions relating
to condemnation awards generally set forth below;
(I) all right, title and interest of Mortgagor, to the extent
assignable, in and to (i) all contracts from time to time executed by
Mortgagor or any manager or agent on its behalf relating to the ownership,
construction, maintenance, repair, operation, occupancy, sale or financing
of the Real Estate or Equipment or any part thereof and all agreements
relating to the purchase or lease of any portion of the Real Estate or any
property which is adjacent or peripheral to the Real Estate, together with
the right to exercise such options (collectively, the "CONTRACTS"), (ii)
all consents, licenses, building permits, certificates of occupancy and
other governmental approvals relating to construction, completion,
occupancy, use or operation of the Real Estate or any part thereof
(collectively, the "PERMITS") and (iii) all drawings, plans,
specifications and similar or related items relating to the Real Estate
(collectively, the "PLANS");
(J) any and all monies now or subsequently on deposit for the
payment of real estate taxes or special assessments against the Real
Estate or for the payment of premiums on insurance policies covering the
foregoing property or otherwise on deposit with or held by Mortgagee as
provided in this Mortgage;
(K) all accounts and revenues arising from the operation of the
Improvements; and
(L) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now owned or
held or subsequently acquired by Mortgagor and described in the foregoing
clauses (A) through (E) are collectively referred to as the "PREMISES", and
those described in the foregoing clauses (A) through (L) are collectively
referred to as the "MORTGAGED PROPERTY").
TO HAVE AND TO HOLD the Mortgaged Property and the rights and
privileges hereby mortgaged unto Mortgagee, its successors and assigns for the
uses and purposes set forth, until the Indebtedness is fully paid and the
Obligations fully performed or as otherwise expressly provided in the Section of
this Mortgage entitled "Release of Mortgage".
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Terms and Conditions
Mortgagor further represents, warrants, covenants and agrees with
Mortgagee as follows:
1. Warranty of Title. Mortgagor warrants that Mortgagor has good
title to the Real Estate in fee simple and good title to the rest of the
Mortgaged Property, subject only to the matters that are set forth in Schedule B
of the title insurance policy or policies being issued to Mortgagee to insure
the lien of this Mortgage and Liens expressly permitted under the Credit
Agreement (collectively, the "PERMITTED EXCEPTIONS") and Mortgagor shall
warrant, defend and preserve such title and the lien of the Mortgage thereon
against all claims of all persons and entities. Mortgagor further warrants that
it has the right to mortgage the Mortgaged Property.
2. Payment of Indebtedness. Mortgagor shall pay the Indebtedness at
the times and places and in the manner specified in the Credit Agreement and
shall perform all the Obligations.
3. Requirements. (a) Mortgagor shall promptly comply with, or cause
to be complied with, and conform to all present and future laws, statutes,
codes, ordinances, orders, judgments, decrees, rules, regulations and
requirements, and irrespective of the nature of the work to be done, of each of
the United States of America, any State and any municipality, local government
or other political subdivision thereof and any agency, department, bureau,
board, commission or other instrumentality of any of them, now existing or
subsequently created (collectively, "GOVERNMENTAL AUTHORITY") which has
jurisdiction over the Mortgaged Property and all covenants, restrictions and
conditions now or later of record which may be applicable to any of the
Mortgaged Property, or to the use, manner of use, occupancy, possession,
operation, maintenance, alteration, repair or reconstruction of any of the
Mortgaged Property, except to the extent that failure to comply therewith, in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect. All present and future laws, statutes, codes, ordinances, orders,
judgments, decrees, rules, regulations and requirements of every Governmental
Authority applicable to Mortgagor or to any of the Mortgaged Property and all
covenants, restrictions, and conditions which now or later may be applicable to
any of the Mortgaged Property are collectively referred to as the "LEGAL
REQUIREMENTS".
(b) From and after the date of this Mortgage, except as expressly
permitted under the Credit Agreement or herein, Mortgagor shall not by act or
omission permit, other than Permitted Exceptions, any building or other
improvement on any premises not subject to
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the lien of this Mortgage to rely on the Premises or any part thereof or any
interest therein to fulfill any Legal Requirement, and Mortgagor hereby assigns
to Mortgagee any and all rights to give consent for all or any portion of the
Premises or any interest therein to be so used. Mortgagor shall not by act or
omission impair the integrity of any of the Real Estate as a single zoning lot
separate and apart from all other premises. Mortgagor represents that each
parcel of the Real Estate constitutes a legally subdivided lot, in compliance
with all subdivision laws and similar Legal Requirements, except to the extent
that failure to comply therewith, in the aggregate, would not reasonably be
expected to have a Material Adverse Effect. Any act or omission by Mortgagor
which would result in a violation of any of the provisions of this subsection
shall be void.
4. Payment of Taxes and Other Impositions. (a) Except as expressly
permitted under the Credit Agreement, Mortgagor, prior to delinquency, shall pay
and discharge all taxes of every kind and nature (including, without limitation,
all real and personal property, income, franchise, withholding, transfer, gains,
profits and gross receipts taxes), all charges for any easement or agreement
maintained for the benefit of any of the Mortgaged Property, all general and
special assessments, levies, permits, inspection and license fees, all water and
sewer rents and charges and all other public charges even if unforeseen or
extraordinary, imposed upon or assessed against or which may become a lien on
any of the Mortgaged Property, or arising in respect of the occupancy, use or
possession thereof, together with any penalties or interest on any of the
foregoing (all of the foregoing are collectively referred to as the
"IMPOSITIONS"). Mortgagor shall within 30 days after the request of Mortgagee
deliver to Mortgagee (i) original or copies of receipted bills and cancelled
checks or other evidence of payment of such Imposition if it is a real estate
tax or other public charge and (ii) evidence acceptable to Mortgagee in its
reasonable discretion showing the payment of any other such Imposition. If by
law any Imposition, at Mortgagor's option, may be paid in installments (whether
or not interest shall accrue on the unpaid balance of such Imposition),
Mortgagor may elect to pay such Imposition in such installments and shall be
responsible for the payment of such Installments with interest, if any.
(b) Nothing herein shall affect any right or remedy of Mortgagee
under this Mortgage or otherwise, without notice or demand to Mortgagor, to pay
any Imposition after the date such Imposition shall have become delinquent, and
to add to the Indebtedness the amount so paid, together with interest from the
time of payment at the rate of interest described in paragraph 4.1(c) of the
Credit Agreement (the "DEFAULT RATE"). Any sums paid by Mortgagee in discharge
of any Impositions shall be (i) a charge on the Premises secured hereby prior to
any right or title to, interest in, or claim upon the Premises subordinate to
the lien of this Mortgage, and (ii) payable on demand by Mortgagor to Mortgagee
together with interest at the Default Rate as set forth above.
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(c) Mortgagor shall not claim, demand or be entitled to receive any
credit or credits toward the satisfaction of this Mortgage or on any interest
payable thereon for any taxes assessed against the Mortgaged Property or any
part thereof, and shall not claim any deduction from the taxable value of the
Mortgaged Property by reason of this Mortgage.
(d) Mortgagor shall have the right pursuant to subsection 7.3 of the
Credit Agreement to contest in good faith to the amount or validity of any
Imposition by appropriate proceedings diligently conducted with reserves in
conformity with GAAP, provided that Mortgagor shall demonstrate to Mortgagee's
reasonable satisfaction that such proceedings shall operate conclusively to
prevent the sale of the Mortgaged Property, or any part thereof, to satisfy such
Imposition prior to final determination of such proceedings.
(e) Upon written notice to Mortgagor, Mortgagee during the
continuance of an Event of Default (as defined below) shall be entitled to
require Mortgagor to pay monthly in advance to Mortgagee the equivalent of
1/12th of the estimated annual Impositions. Mortgagee may commingle such funds
with its own funds but Mortgagor shall be entitled to interest thereon at a rate
mutually agreed upon by Mortgagor and Mortgagee.
5. Insurance. (a) Mortgagor shall maintain or cause to be maintained
on all of the Premises:
(i) property insurance against loss or damage by fire, lightning,
windstorm, tornado, water damage, flood, earthquake and by such other
further risks and hazards as now are or subsequently may be covered by an
"all risk" policy or a fire policy covering "special" causes of loss
(provided, however, that the maintenance of insurance against earthquake,
windstorm, flood and freeze risks shall be subject to availability of such
insurance coverage on commercially reasonable terms). The policy shall
include building ordinance law endorsements and the policy limits shall be
automatically reinstated after each loss (other than with respect to flood
and earthquake coverage which shall be reinstated on a commercially
reasonable basis);
(ii) commercial general liability insurance under a policy including
the "broad form CGL endorsement" (or which incorporates the language or
similar language of such endorsement), covering all claims for personal
injury, bodily injury or death, or property damage, subject to standard
policy terms, conditions and exclusions, occurring on, in or about the
Premises in an amount not less than $10,000,000 combined single limit with
respect to personal injury, bodily injury or death, or property damage,
relating to any one occurrence plus such excess limits as Mortgagee shall
reasonably request from time to time;
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(iii) when and to the extent reasonably required by Mortgagee,
insurance against loss or damage by any other risk commonly insured
against by persons occupying or using like properties in the locality or
localities in which the Real Estate is situated;
(iv) during the course of any construction or repair of
Improvements, commercial general liability insurance under a policy
including the "broad form CGL endorsement" (or which incorporates the
language or similar language of such endorsement), (including coverage for
elevators and escalators, if any). The policy shall include coverage for
independent contractors and completed operations. The completed operations
coverage shall stay in effect for two years after construction of any
Improvements has been completed. The policy shall provide coverage on an
occurrence basis against claims for personal injury, including, without
limitation, bodily injury and death, and property damage resulting from
Mortgagor's negligence or other behavior for which Mortgagor may be
adjudged tortiously liable, subject to standard policy terms, conditions
and exclusions, occurring on, in or about the Premises and the adjoining
streets, sidewalks and passageways, such insurance to afford immediate
minimum protection to a limit of not less than that reasonably required by
Mortgagee with respect to personal injury, bodily injury or death to any
one or more persons or damage to property;
(v) during the course of any construction or repair of the
Improvements, workers' compensation insurance (including employer's
liability insurance) for all employees of Mortgagor engaged on or with
respect to the Premises in such amounts no less than the limits
established by law or in the case of employer's liability insurance, no
less than $500,000, provided that Mortgagor may self-insure any or all
workers' compensation liabilities;
(vi) during the course of any construction, addition, alteration or
repair of the Improvements, builder's risk completed value property
insurance form against "all risks of physical loss" (subject to standard
policy exclusions), including collapse, water damage, flood and earthquake
and transit coverage, during construction or repairs of the Improvements,
with deductible approved by Mortgagee in its reasonable discretion, in
reporting form, covering the total replacement value of work performed and
equipment, supplies and materials furnished (with an appropriate limit for
soft costs in the case of construction); provided, however, that the
maintenance of insurance against earthquake and flood risks shall be
subject to availability of such insurance coverage on commercially
reasonable terms;
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(vii) boiler and machinery property insurance covering pressure
vessels, air tanks, boilers, machinery, pressure piping, heating, air
conditioning and elevator equipment and escalator equipment, provided the
Improvements contain equipment of such nature, in such amounts as are
reasonably satisfactory to Mortgagee but not less than the lesser of
$1,000,000 or 10% of the value of the Improvements;
(viii)if any portion of the Premisses are located in an area
identified in the Federal Register as having special flood hazards by the
Secretary of Housing and Urban Development or other applicable agency,
flood insurance covering any parcel of the Mortgaged Property which
contains improvements in an amount satisfactory to Mortgagee in its
reasonable discretion, but in no event less than the maximum limit of
coverage available with respect to the particular type of property under
the National Flood Insurance Act of 1968, as amended and with a term
ending not later than the maturity of the Indebtedness and Mortgagee shall
receive confirmation that Mortgagor has received the notice required
pursuant to Section 208.8(e)(3) of Regulation H of the Board of Governors
of The Federal Reserve System; and
(ix) such other insurance in such amounts as Mortgagee may
reasonably request from time to time.
Each insurance policy (other than flood insurance written under the National
Flood Insurance Act of 1968, as amended, in which case to the extent available)
shall (i) provide that it shall not be cancelled, non-renewed or, in the case of
property and boiler and machinery insurance, materially amended without 30-days'
prior written notice to Mortgagee, (ii) with respect to all property insurance,
subject to availability on commercially reasonable terms, provide for
deductibles not to exceed $250,000, other than with respect to (a) flood,
freeze, windstorm and earthquake perils for which deductibles shall not exceed
the greater of $500,000 or 5% of values at risk per location involved in loss
and (b) boiler and machinery coverage for which deductibles shall not exceed the
greater of $500,000 or five times 100% of the daily time element value, contain
a "Replacement Cost Endorsement" without any deduction made for depreciation and
with no co-insurance penalty (or attaching an agreed amount endorsement
satisfactory to Mortgagee in its reasonable discretion), with loss payable
solely to Mortgagee (modified, if necessary and to the extent available under
such policy, to provide that proceeds in the amount of replacement cost may be
retained by Mortgagee without the obligation to rebuild) as its interest may
appear, without contribution, under a "standard" or "New York" mortgagee clause
acceptable to Mortgagee in its reasonable discretion and be written by insurance
companies having an A.M. Best Company, Inc. rating of A- or higher and a
financial size category of not less than VII, or otherwise as approved by
Mortgagee in its reasonable discretion and (iii) contain a "manuscript"
endorsement providing that Mortgagor may not unilaterally cancel such policy
without Mortgagee's prior written consent. Liability
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insurance policies shall name Mortgagee as an additional insured and contain a
waiver of subrogation against Mortgagee; all such policies shall indemnify and
hold Mortgagee harmless from all liability claims occurring on, in or about the
Premises and the adjoining streets, sidewalks and passageways, subject to
standard policy terms, conditions and exclusions. The amounts of each insurance
policy and the form of each such policy shall at all times be satisfactory to
Mortgagee in its reasonable discretion. Each policy shall expressly provide that
any proceeds which are payable to Mortgagee shall be paid by check payable to
the order of Mortgagee only and requiring the endorsement of Mortgagee only. If
any required insurance shall expire, be withdrawn, become void by breach of any
condition thereof by Mortgagor or by any lessee of any part of the Mortgaged
Property or become void or unsafe by reason of the failure or impairment of the
capital of any insurer, Mortgagor shall immediately obtain new or additional
insurance satisfactory to Mortgagee in its reasonable discretion. Mortgagor
shall not take out any separate or additional insurance which is contributing in
the event of loss unless it is properly endorsed and otherwise satisfactory to
Mortgagee in all respects in its reasonable discretion.
(b) Mortgagor shall deliver to Mortgagee an original of each
insurance policy required to be maintained, or a certificate of such insurance
acceptable to Mortgagee in its reasonable discretion, together with a copy of
the declaration page for each such policy. Mortgagor shall (i) pay as they
become due all premiums for such insurance, (ii) not later than seven days prior
to the expiration of each policy to be furnished pursuant to the provisions of
this Section, deliver a renewed policy or policies, or certificates of insurance
acceptable to Mortgagee, in its reasonable discretion, or duplicate original or
originals thereof. Upon the reasonable request of Mortgagee, Mortgagor shall
cause its insurance underwriter or broker to certify to Mortgagee in writing
that all the requirements of this Mortgage governing insurance have been
satisfied.
(c) If Mortgagor is in default of its obligations to insure or
deliver any such policy or policies, or certificates of insurance acceptable to
Mortgagee, in its reasonable discretion, then Mortgagee, at its option and
without notice, may effect such insurance from year to year, and pay the premium
or premiums therefor, and Mortgagor shall pay to Mortgagee on demand such
premium or premiums so paid by Mortgagee with interest from the time of payment
at the Default Rate and the same shall be deemed to be secured by this Mortgage
and shall be collectible in the same manner as the Indebtedness secured by this
Mortgage.
(d) Mortgagor shall increase the amount of property insurance
required to equal 100% replacement cost pursuant to the provisions of this
Section at the time of each renewal of each policy (but not later than 12 months
from the date of this Mortgage and each successive 12 month period to occur
thereafter) by using the Xxxxxx & Swift Building Cost
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Index to determine whether there shall have been an increase in the replacement
value since the most recent adjustment and, if there shall have been such an
increase, the amount of insurance required shall be adjusted accordingly.
(e) Mortgagor promptly shall in all material respects comply with
and conform to (i) all provisions of each such insurance policy, and (ii) all
requirements of the insurers applicable to Mortgagor or to any of the Mortgaged
Property or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration or repair of any of the Mortgaged Property. Mortgagor
shall not use or permit the use of the Mortgaged Property in any manner which
would permit any insurer to cancel any insurance policy or void coverage
required to be maintained by this Mortgage.
(f) (i) If the Mortgaged Property, or any part thereof, shall be
destroyed or damaged by fire or any other casualty, whether insured or
uninsured, or in the event any claim is made against Mortgagor for any
personal injury, bodily injury or property damage incurred on or about the
Premises, Mortgagor shall promptly give notice thereof to Mortgagee.
(ii) If the Mortgaged Property is damaged by fire or other casualty
and the cost to repair such damage is less than $1,000,000, then provided
that no Event of Default shall have occurred and be continuing, Mortgagor
shall have the right to adjust such loss, and the insurance proceeds
relating to such loss may be paid over to Mortgagor; provided that
Mortgagor shall, promptly after any such damage, repair such damage to the
extent required by subsection 7.5 of the Credit Agreement regardless of
whether any insurance proceeds have been received or whether such
proceeds, if received, are sufficient to pay for the costs of repair.
(iii) If the Mortgaged Property is damaged by fire or other
casualty, and the cost to repair such damage exceeds the limit in Section
5(f)(ii) above, or if an Event of Default shall have occurred and be
continuing, then Mortgagor authorizes and empowers Mortgagee, at
Mortgagee's option and in Mortgagee's reasonable discretion, as
attorney-in-fact for Mortgagor, to make proof of loss, to adjust and
compromise any claim under any insurance policy, to appear in and
prosecute any action arising from any policy, to collect and receive
insurance proceeds and to deduct therefrom Mortgagee's reasonable expenses
incurred in the collection process. Each insurance company concerned is
hereby authorized and directed to make payment for such loss directly to
Mortgagee. Mortgagee shall have the right to require Mortgagor to repair
or restore the Mortgaged Property to the extent required by subsection 7.5
of the Credit Agreement, and Mortgagor hereby designates Mortgagee as its
attorney-in-fact for the purpose of making any election required or
permitted under any insurance policy
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relating to such repair or restoration. The insurance proceeds or any part
thereof received by Mortgagee may be applied by Mortgagee toward
reimbursement of all reasonable costs and expenses of Mortgagee in
collecting such proceeds, and the balance, at Mortgagee's option in its
sole and absolute discretion, to the principal (to the installments in
inverse order of maturity, if payable in installments) and interest due or
to become due under the Notes, the Credit Agreement or the other Loan
Documents, to fulfill any other Obligation of Mortgagor, to the
restoration or repair of the property damaged, or released to Mortgagor.
Application by Mortgagee of any insurance proceeds toward the last
maturing installments of principal and interest due or to become due on
the Loans shall not excuse Mortgagor from making any regularly scheduled
payments due thereunder, nor shall such application extend or reduce the
amount of such payments. In the event Mortgagee elects to release such
proceeds to Mortgagor, Mortgagor shall be obligated to use such proceeds
to restore or repair the Mortgaged Property to the extent required by
subsection 7.5 of the Credit Agreement.
(g) In the event of foreclosure of this Mortgage or other transfer
of title to the Mortgaged Property in extinguishment of the Indebtedness, all
right, title and interest of Mortgagor in and to any insurance policies then in
force, to the extent assignable or transferable, shall pass to the purchaser or
grantee and Mortgagor hereby appoints Mortgagee its attorney-in-fact, in
Mortgagor's name, to assign and transfer all such policies and proceeds to such
purchaser or grantee.
(h) Upon written notice to Mortgagor, Mortgagee, during the
continuance of an Event of Default, shall be entitled to require Mortgagor to
pay monthly in advance to Mortgagee the equivalent of 1/12th of the estimated
annual premiums due on such insurance. Mortgagee may commingle such funds with
its own funds but Mortgagor shall be entitled to interest thereon at a rate
mutually agreed upon by Mortgagor and Mortgagee.
(i) Mortgagor may maintain insurance required under this Mortgage by
means of one or more blanket insurance policies maintained by Mortgagor;
provided, however, that (A) any such policy shall specify, or Mortgagor shall
furnish to Mortgagee a written statement from the insurer so specifying, the
maximum amount of the total insurance afforded by such blanket policy that is
allocated to the Premises and the other Mortgaged Property and any sublimits and
aggregates in such blanket policy applicable to the Premises and the other
Mortgaged Property, (B) each such blanket policy shall include an endorsement
providing that, in the event of a loss resulting from an insured peril,
insurance proceeds shall be allocated to the Mortgaged Property in an amount
equal to the coverages required to be maintained by Mortgagor as provided above
(subject to applicable sublimits and aggregates) and (C) the protection afforded
under any such blanket policy shall be no less than that which
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would have been afforded under a separate policy or policies relating only to
the Mortgaged Property (subject to applicable sublimits and aggregates).
6. Restrictions on Liens and Encumbrances. Except for the lien of
this Mortgage and the Permitted Exceptions and except as otherwise permitted
pursuant to the terms of the Credit Agreement, Mortgagor shall not further
mortgage, nor otherwise encumber the Mortgaged Property nor create or suffer to
exist any lien, charge or encumbrance on the Mortgaged Property, or any part
thereof, whether superior or subordinate to the lien of this Mortgage and
whether recourse or non-recourse.
7. Due on Sale and Other Transfer Restrictions. Except as may be
otherwise expressly permitted under the Credit Agreement, Mortgagor shall not
sell, transfer, convey or assign all or any portion of, or any interest in, the
Mortgaged Property.
8. Maintenance; No Alteration; Inspection; Utilities. (a) Mortgagor
shall maintain or cause to be maintained all the Improvements in good condition
and repair and shall not commit or suffer any waste of the Improvements. To the
extent required under subsection 7.5 of the Credit Agreement, Mortgagor shall
repair, restore, replace or rebuild promptly any part of the Premises which may
be damaged or destroyed by any casualty whatsoever to a condition substantially
equivalent to its condition prior to the damage or destruction. Except as
permitted by the Credit Agreement, the Improvements shall not be demolished or
materially altered, nor any material additions built, without the prior written
consent of Mortgagee, provided that Mortgagor may make alterations or additions
without the consent of Mortgagee that do not materially reduce the value of the
Mortgaged Property. Mortgagor's failure to pay (i) any Imposition assessed
against the Premises, or any installment thereof, or (ii) any insurance premium
upon policies required to be carried by the terms of this Mortgage, shall
constitute waste (although the meaning of the term "waste" shall not be limited
to such nonpayment) as provided by Act No. 236 of the Michigan Public Acts of
1961 (Revised Judicature Act), Section 600.2927, as and if amended and shall
entitle Mortgagee to all remedies provided for therein; and Mortgagor agrees to
and hereby does consent to the appointment of a receiver under said statute,
should Mortgagee elect to seek such relief thereunder.
(b) Mortgagee and any persons authorized by Mortgagee shall, upon
reasonable notice and at any reasonable time, have the right to enter and
inspect the Premises and the right to inspect all work done, labor performed and
materials furnished in and about the Improvements and the right to inspect and
make copies, to the extent reasonable, of all books, contracts and records of
Mortgagor relating to the Mortgaged Property.
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(c) Except as permitted under subsection 7.3 of the Credit
Agreement, Mortgagor shall pay or cause to be paid prior to delinquency, all
utility charges which are incurred for gas, electricity, water or sewer services
furnished to the Premises and all other assessments or charges of a similar
nature, whether public or private, affecting the Premises or any portion
thereof, whether or not such assessments or charges are liens thereon.
9. Condemnation/Eminent Domain. Promptly upon obtaining knowledge of
the institution of any proceedings for the condemnation of the Mortgaged
Property, or any portion thereof, Mortgagor will notify Mortgagee of the
pendency of such proceedings. Mortgagor authorizes Mortgagee, at Mortgagee's
option and in Mortgagee's reasonable discretion, as attorney-in-fact for
Mortgagor, to commence, appear in and prosecute, in Mortgagee's or Mortgagor's
name, any action or proceeding relating to any condemnation of the Mortgaged
Property, or any portion thereof, and to settle or compromise any claim in
connection with such condemnation upon the occurrence and during the continuance
of an Event of Default. If Mortgagee elects not to participate in such
condemnation proceeding, then Mortgagor shall, at its expense, diligently
prosecute any such proceeding and shall consult with Mortgagee, its attorneys
and experts and cooperate with them in any defense of any such proceedings. All
awards and proceeds of condemnation shall be applied in the same manner as
insurance proceeds, and to the extent such awards and proceeds exceed $1,000,000
and no Event of Default shall have occurred and be continuing, such awards and
proceeds shall be assigned to Mortgagee to be applied in the same manner as
insurance proceeds, as provided above in subsection 5(f)(iii) above, and
Mortgagor agrees to execute any such assignments of all such awards as Mortgagee
may request.
10. Restoration. If Mortgagee elects or is required hereunder to
release funds to Mortgagor for restoration of any of the Mortgaged Property,
then such restoration shall be performed in accordance with such conditions as
Mortgagee shall impose in its reasonable discretion, and as are customarily
imposed by construction lenders.
11. Leases. (a) Mortgagor shall not (i) execute an assignment or
pledge of any Lease relating to all or any portion of the Mortgaged Property
other than in favor of Mortgagee, or (ii) without the prior written consent of
Mortgagee, which consent shall not be unreasonably withheld or delayed, execute
or permit to exist any Lease of any of the Mortgaged Property, except for
Permitted Exceptions and except as may be otherwise expressly permitted under
the Credit Agreement.
(b) As to any Lease consented to by Mortgagee under subsection 11(a)
above, Mortgagor shall:
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(i) promptly perform in all material respects all of the provisions
of the Lease on the part of the lessor thereunder to be performed;
(ii) promptly enforce all of the material provisions of the Lease on
the part of the lessee thereunder to be performed;
(iii) appear in and defend any action or proceeding arising under or
in any manner connected with the Lease or the obligations of Mortgagor as
lessor or of the lessee thereunder;
(iv) exercise, within 5 business days after a reasonable request by
Mortgagee, any right to request from the lessee a certificate with respect
to the status thereof;
(v) promptly deliver to Mortgagee copies of any notices of default
which Mortgagor may at any time forward to or receive from the lessee;
(vi) promptly deliver to Mortgagee a fully executed counterpart of
the Lease; and
(vii) promptly deliver to Mortgagee, upon Mortgagee's reasonable
request, if permitted under such Lease, an assignment of the Mortgagor's
interest under such Lease.
(c) Mortgagor shall deliver to Mortgagee, within 10 business days
after a reasonable request by Mortgagee, a written statement, certified by
Mortgagor as being true, correct and complete, containing the names of all
lessees and other occupants of the Mortgaged Property, the terms of all Leases
and the spaces occupied and rentals payable thereunder, and a list of all Leases
which are then in default, including the nature and magnitude of the default;
such statement shall be accompanied by such other information as Mortgagee may
reasonably request.
(d) All Leases entered into by Mortgagor after the date hereof, if
any, and all rights of any lessees thereunder shall be subject and subordinate
in all respects to the lien and provisions of this Mortgage unless Mortgagee
shall otherwise elect in writing.
(e) In the event of the enforcement by Mortgagee of any remedy under
this Mortgage, the lessee under each Lease shall, if requested by Mortgagee or
any other person succeeding to the interest of Mortgagee as a result of such
enforcement, and if provided, at such lessee's request, with a nondisturbance
agreement from Mortgagee or such person, attorn
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to Mortgagee or to such person and shall recognize Mortgagee or such successor
in interest as lessor under the Lease without change in the provisions thereof;
provided however, that Mortgagee or such successor in interest shall not be: (i)
bound by any payment of an installment of rent or additional rent which may have
been made more than 30 days before the due date of such installment; (ii) bound
by any amendment or modification to the Lease made without the consent of
Mortgagee or such successor in interest; (iii) liable for any previous act or
omission of Mortgagor (or its predecessors in interest); (iv) responsible for
any monies owing by Mortgagor to the credit of such lessee or subject to any
credits, offsets, claims, counterclaims, demands or defenses which the lessee
may have against Mortgagor (or its predecessors in interest); (v) bound by any
covenant to undertake or complete any construction of the Premises or any
portion thereof; or (vi) obligated to make any payment to such lessee other than
any security deposit actually delivered to Mortgagee or such successor in
interest. Each lessee or other occupant, upon request by Mortgagee or such
successor in interest, shall execute and deliver an instrument or instruments
confirming such attornment. In addition, Mortgagor agrees that each Lease
entered into after the date of this Mortgage shall include language to the
effect of subsections (d)-(e) of this Section and language to the effect that if
any act or omission of Mortgagor would give any lessee under such Lease the
right, immediately or after lapse of a period of time, to cancel or terminate
such Lease, or to xxxxx or offset against the payment of rent or to claim a
partial or total eviction, such lessee shall not exercise such right until it
has given written notice of such act or omission to Mortgagee and until a
reasonable period for remedying such act or omission shall have elapsed
following the giving of such notice without a remedy being effected; provided
that the provisions of such subsections shall be self-operative and any failure
of any Lease to include such language shall not impair the binding effect of
such provisions on any lessee under such Lease.
12. Further Assurances/Estoppel Certificates. To further assure
Mortgagee's rights under this Mortgage, Mortgagor agrees upon demand of
Mortgagee to do any act or execute any additional documents (including, but not
limited to, security agreements on any personalty included or to be included in
the Mortgaged Property and a separate assignment of each Lease in recordable
form) as may be reasonably required by Mortgagee to confirm the rights or
benefits conferred on Mortgagee by this Mortgage.
13. Mortgagee's Right to Perform. If Mortgagor fails to perform any
of the covenants or agreements of Mortgagor, Mortgagee, without waiving or
releasing Mortgagor from any obligation or default under this Mortgage, may, at
any time (but shall be under no obligation to) pay or perform the same, and the
amount or cost thereof, with interest at the Default Rate, shall immediately be
due from Mortgagor to Mortgagee and the same shall be secured by this Mortgage
and shall be an encumbrance on the Mortgaged Property prior to any right, title
to, interest in or claim upon the Mortgaged Property attaching subsequent to the
date of this Mortgage. No payment or advance of money by Mortgagee under this
Section
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shall be deemed or construed to cure Mortgagor's default or waive any right or
remedy of Mortgagee.
14. Events of Default. The occurrence of an Event of Default under
the Credit Agreement shall constitute an Event of Default hereunder.
15. Remedies. (a) Upon the occurrence of any Event of Default, in
addition to any other rights and remedies Mortgagee may have pursuant to the
Loan Documents, or as provided by law, and without limitation, the Indebtedness
and all other amounts payable with respect to the Loans, the Letters of Credit,
the Credit Agreement, this Mortgage and the other Security Documents shall
become due and payable as provided in the Credit Agreement. Except as expressly
provided above in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived. In addition, upon the
occurrence of any Event of Default, Mortgagee may immediately take such action,
without notice or demand, as it deems advisable to protect and enforce its
rights against Mortgagor and in and to the Mortgaged Property, including, but
not limited to, the following actions, each of which may be pursued concurrently
or otherwise, at such time and in such manner as Mortgagee may determine, in its
sole discretion, without impairing or otherwise affecting the other rights and
remedies of Mortgagee:
(i) Mortgagee may, to the extent permitted by applicable law, (A)
institute and maintain an action of mortgage foreclosure against all or
any part of the Mortgaged Property (as described below), (B) institute and
maintain an action on the Notes, the Credit Agreement or the other
Security Documents, (C) sell all or part of the Mortgaged Property
(Mortgagor expressly granting to Mortgagee the power of sale, as more
fully described below), (D) exercise its rights under the Assignment of
Rents in accordance with applicable Michigan statutes, or (E) take such
other action at law or in equity for the enforcement of this Mortgage or
any of the Loan Documents as the law may allow. Mortgagee may proceed in
any such action to final judgment and execution thereon for all sums due
hereunder, together with interest thereon at the Default Rate and all
costs of suit, including, without limitation, reasonable attorneys' fees
and disbursements. Interest at the Default Rate shall be due on any
judgment obtained by Mortgagee from the date of judgment until actual
payment is made of the full amount of the judgment.
(ii) Mortgagee may immediately commence foreclosure proceedings
against the Mortgaged Property pursuant to applicable law. The
commencement by Mortgagee of foreclosure proceedings by advertisement or
in equity shall be deemed an exercise by Mortgagee of its option set forth
above to accelerate the due date of all sums secured hereby. Mortgagor
hereby grants power to Mortgagee, in the event of the occurrence
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of an Event of Default hereunder, to grant, bargain, sell, release and
convey the Mortgaged Property at public auction or vendue, and upon such
sale to execute and deliver to the purchaser(s) instruments of conveyance
pursuant to the terms hereof and to the applicable laws. Mortgagor
acknowledges that the foregoing sentence confers a power of sale upon
Mortgagee, and that upon the occurrence of an Event of Default this
Mortgage may be foreclosed by advertisement as described below and in the
applicable Michigan statutes. MORTGAGOR UNDERSTANDS THAT UPON DEFAULT,
MORTGAGEE IS HEREBY AUTHORIZED AND EMPOWERED TO SELL THE MORTGAGED
PROPERTY, OR CAUSE THE SAME TO BE SOLD AND TO CONVEY THE SAME TO THE
PURCHASER IN ANY LAWFUL MANNER, INCLUDING BUT NOT LIMITED TO THAT PROVIDED
BY CHAPTER 32 OF THE REVISED JUDICATURE ACT OF MICHIGAN, ENTITLED
"FORECLOSURE OF MORTGAGE BY ADVERTISEMENT", WHICH PERMITS MORTGAGEE TO
SELL THE MORTGAGED PROPERTY WITHOUT AFFORDING MORTGAGOR A HEARING, OR
GIVING IT ACTUAL PERSONAL NOTICE. THE ONLY NOTICE REQUIRED UNDER SUCH
CHAPTER 32 IS TO PUBLISH NOTICE IN A LOCAL NEWSPAPER AND TO POST A COPY OF
THE NOTICE ON THE MORTGAGED PROPERTY.
WAIVER: BY CONFERRING THIS POWER OF SALE UPON MORTGAGEE, MORTGAGOR, FOR
ITSELF, ITS SUCCESSORS AND ASSIGNS, AFTER AN OPPORTUNITY FOR CONSULTATION
WITH ITS LEGAL COUNSEL, HEREBY VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY
WAIVES ALL RIGHTS UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES AND
UNDER THE CONSTITUTION AND LAWS OF THE STATE OF MICHIGAN, BOTH TO A
HEARING ON THE RIGHT TO EXERCISE AND THE EXERCISE OF THE POWER OF SALE,
AND TO NOTICE EXCEPT AS REQUIRED BY THE MICHIGAN STATUTE WHICH PROVIDES
FOR FORECLOSURE OF MORTGAGES BY ADVERTISEMENT.
(iii) Mortgagee may personally, or by its agents, attorneys and
employees and without regard to the adequacy or inadequacy of the
Mortgaged Property or any other collateral as security for the
Indebtedness and Obligations enter into and upon the Mortgaged Property
and each and every part thereof and exclude Mortgagor and its agents and
employees therefrom without liability for trespass, damage or otherwise
(Mortgagor hereby agreeing to surrender possession of the Mortgaged
Property to Mortgagee upon demand at any such time) and use, operate,
manage, maintain and control the Mortgaged Property and every part
thereof. Following such entry and taking of possession, Mortgagee shall be
entitled, without limitation, (x) to lease all or any part or parts of the
Mortgaged Property for such periods of time and upon such conditions as
Mortgagee may, in its discretion, deem proper, (y) to enforce, cancel or
modify any Lease and (z) generally to execute, do and perform any other
act, deed, matter or thing concerning the Mortgaged Property as Mortgagee
shall deem appropriate as fully as Mortgagor might do.
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In connection with Mortgagee's right to possession of the Mortgaged
Property as specified in this paragraph, Mortgagor acknowledges that it
has been advised that there is a significant body of case law in Michigan
which purportedly provides that in the absence of a showing of waste of a
character sufficient to endanger the value of the Mortgaged Property, or
other special factors, a mortgagor is entitled to remain in possession of
Mortgaged Property, and to enjoy the income, rents and profits therefrom,
during the pendency of foreclosure proceedings and until the expiration of
the redemption period, even if the mortgage documents expressly provide to
the contrary. Mortgagor further acknowledges that it has been advised that
Mortgagee recognizes the value of the security covered hereby is
inextricably intertwined with the effectiveness of the management,
maintenance and general operation of the Mortgaged Property, and that
Mortgagee would not extend the Indebtedness secured hereby unless it could
be assured that it would have the right to take possession of the
Mortgaged Property in order to manage or to control management thereof,
and to enjoy the income, rents and profits therefrom, immediately upon
default by Mortgagor hereunder, notwithstanding that foreclosure
proceedings may not have been instituted, or are pending, or the
redemption period may not have expired. Accordingly, Mortgagor hereby
knowingly, intelligently and voluntarily waives all right to possession of
the Mortgaged Property from and after the occurrence of an Event of
Default hereunder, upon demand for possession by Mortgagee, and Mortgagor
agrees not to assert any objection or defense to Mortgagee's request or
petition to a court for possession. The rights hereby conferred upon
Mortgagee have been agreed upon prior to any default by Mortgagor
hereunder and the exercise by Mortgagee of any such rights shall not be
deemed to put Mortgagee in the status of a "mortgagee in possession".
Mortgagor acknowledges that this provision is material to this transaction
and that Mortgagee would not extend the Indebtedness secured hereby but
for this paragraph.
(b) The holder of this Mortgage, in any action to foreclose it,
shall be entitled to the appointment of a receiver. In case of a foreclosure
sale, the Real Estate may be sold, at Mortgagee's election, in one parcel or in
more than one parcel and if in more than one parcel the same may be divided as
Mortgagee may elect and Mortgagee is specifically empowered, (without being
required to do so, and in its sole and absolute discretion) to cause successive
sales of portions of the Mortgaged Property to be held. At the election of
Mortgagee, the Mortgaged Property may be offered first in parcels and then as a
whole, the offer producing the highest price for the entire property offered to
prevail. Mortgagor hereby waives any right to require any such sale to be made
in parcels or any right to select such parcels.
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(c) In the event of any breach of any of the covenants, agreements,
terms or conditions contained in this Mortgage, and notwithstanding to the
contrary any exculpatory or non-recourse language which may be contained herein,
Mortgagee shall be entitled to enjoin such breach and obtain specific
performance of any covenant, agreement, term or condition and Mortgagee shall
have the right to invoke any equitable right or remedy as though other remedies
were not provided for in this Mortgage.
(d) In the event of a default because of the existence of any lien
upon the Mortgaged Property, Mortgagee shall have the right (without being
obligated to do so or to continue to do so), without notice to Mortgagor, to
advance on and for the account of Mortgagor such sums as Mortgagee in its sole
discretion deems necessary to cure such default or to induce the holder of any
such lien to forbear from exercising its rights thereunder. Notwithstanding
anything herein to the contrary, the repayment of all such advances, with
interest thereon at the Default Rate from the date of each such advance, shall
be immediately due and payable without demand.
16. Right of Mortgagee to Credit Sale. Upon the occurrence of any
sale made under this Mortgage, whether made under the power of sale or by virtue
of judicial proceedings or of a judgment or decree of foreclosure and sale,
Mortgagee may bid for and acquire the Mortgaged Property or any part thereof. In
lieu of paying cash therefor, Mortgagee may make settlement for the purchase
price by crediting upon the Indebtedness or other sums secured by this Mortgage
the net sales price after deducting therefrom the expenses of sale and the cost
of the action and any other sums which Mortgagee is authorized to deduct under
this Mortgage. In such event, this Mortgage, the Notes and other instruments
evidencing the Indebtedness and any and all documents evidencing expenditures
secured hereby may be presented to the person or persons conducting the sale in
order that the amount so used or applied may be credited upon the Indebtedness
as having been paid.
17. Appointment of Receiver. If an Event of Default shall have
occurred and be continuing, Mortgagee as a matter of right and without notice to
Mortgagor, unless otherwise required by applicable law, and without regard to
the adequacy or inadequacy of the Mortgaged Property or any other collateral as
security for the Indebtedness and Obligations or the interest of Mortgagor
therein, shall have the right to apply to any court having jurisdiction to
appoint a receiver or receivers or other manager of the Mortgaged Property,
without requiring the posting of a surety bond and without reference to the
adequacy or inadequacy of the value of the Mortgaged Property or the solvency or
insolvency of Mortgagor or any other party obligated for payment of all or any
part of the Indebtedness, and whether or not waste has occurred with respect to
the Mortgaged Property. Mortgagor hereby irrevocably consents to such
appointment and waives notice of any application therefor (except as may be
required by law). Any such receiver or receivers or other manager shall have all
the usual powers and
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duties of receivers in like or similar cases and all the powers and duties of
Mortgagee in case of entry as provided in this Mortgage, including, without
limitation and to the extent permitted by law, the right to enter into leases of
all or any part of the Mortgaged Property, and shall continue as such and
exercise all such powers until the date of confirmation of sale of the Mortgaged
Property unless such receivership is sooner terminated.
18. Extension, Release, etc. (a) Without affecting the lien or
charge of this Mortgage upon any portion of the Mortgaged Property not then or
theretofore released as security for the full amount of the Indebtedness,
Mortgagee may, from time to time and without notice, agree to (i) release any
person liable for the Indebtedness, (ii) extend the maturity or alter any of the
terms of the Indebtedness or any guaranty thereof, (iii) grant other
indulgences, (iv) release or reconvey, or cause to be released or reconveyed at
any time at Mortgagee's option any parcel, portion or all of the Mortgaged
Property, (v) take or release any other or additional security for any
obligation herein mentioned, or (vi) make compositions or other arrangements
with debtors in relation thereto. If at any time this Mortgage shall secure less
than all of the principal amount of the Indebtedness, it is expressly agreed
that any repayments of the principal amount of the Indebtedness shall not reduce
the amount of the encumbrance of this Mortgage until the encumbrance amount
shall equal the principal amount of the Indebtedness outstanding.
(b) No recovery of any judgment by Mortgagee and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect the encumbrance of this Mortgage or any
liens, rights, powers or remedies of Mortgagee hereunder, and such liens,
rights, powers and remedies shall continue unimpaired.
(c) If Mortgagee shall have the right to foreclose this Mortgage,
Mortgagor authorizes Mortgagee at its option to foreclose the lien of this
Mortgage subject to the rights of any tenants of the Mortgaged Property. The
failure to make any such tenants parties defendant to any such foreclosure
proceeding and to foreclose their rights will not be asserted by Mortgagor as a
defense to any proceeding instituted by Mortgagee to collect the Indebtedness or
to foreclose the lien of this Mortgage.
(d) Unless expressly provided otherwise, in the event that ownership
of this Mortgage and title to the Mortgaged Property or any estate therein shall
become vested in the same person or entity, this Mortgage shall not merge in
such title but shall continue as a valid lien on the Mortgaged Property for the
amount secured hereby.
19. Security Agreement under Uniform Commercial Code. (a) It is the
intention of the parties hereto that this Mortgage shall constitute a Security
Agreement within the meaning of the Uniform Commercial Code (the "CODE") of the
State in which the
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Mortgaged Property is located. If an Event of Default shall occur under this
Mortgage, then in addition to having any other right or remedy available at law
or in an equity, Mortgagee shall have the option of either (i) proceeding under
the Code and exercising such rights and remedies as may be provided to a secured
party by the Code with respect to all or any portion of the Mortgaged Property
which is personal property (including, without limitation, taking possession of
and selling such property) or (ii) treating such property as real property and
proceeding with respect to both the real and personal property constituting the
Mortgaged Property in accordance with Mortgagee's rights, powers and remedies
with respect to the real property (in which event the default provisions of the
Code shall not apply). If Mortgagee shall elect to proceed under the Code, then
five days' notice of sale of the personal property shall be deemed reasonable
notice and the reasonable expenses of retaking, holding, preparing for sale,
selling and the like incurred by Mortgagee shall include, but not be limited to,
reasonable attorneys' fees and legal expenses. At Mortgagee's request, during
the continuance of an Event of Default, Mortgagor shall assemble the personal
property and make it available to Mortgagee at a place designated by Mortgagee
which is reasonably convenient to both parties.
(b) Mortgagor and Mortgagee agree, to the extent permitted by law,
that: (i) all of the goods described within the definition of the word
"Equipment" are or are to become fixtures on the Real Estate; (ii) this Mortgage
upon recording or registration in the real estate records of the proper office
shall constitute a financing statement filed as a "fixture filing" within the
meaning of Sections 9-313 and 9-402 of the Code; (iii) Mortgagor is the record
owner of the Real Estate; (iv) the mailing addresses of Mortgagor and Mortgagee
are as set forth on the first page of this Mortgage; and (v) Mortgagor's federal
tax identification number is 00-000-0000. In addition, for purposes of Article 9
of the Michigan Uniform Commercial Code, (i) Mortgagor is the "debtor", (ii)
Mortgagee is the "secured party" and (iii) information concerning the security
interest created hereby may be obtained from Mortgagee at its address on the
first page of this Mortgage.
(c) Mortgagor, upon request by Mortgagee from time to time, shall
execute, acknowledge and deliver to Mortgagee one or more separate security
agreements, in form satisfactory to Mortgagee in its reasonable discretion,
covering all or any part of the Mortgaged Property and will further execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
any financing statement, affidavit, continuation statement or certificate or
other document as Mortgagee may request in order to perfect, preserve, maintain,
continue or extend the security interest under and the priority of this Mortgage
and such security instrument. Mortgagor further agrees to pay to Mortgagee on
demand all reasonable costs and expenses incurred by Mortgagee in connection
with the preparation, execution, recording, filing and re-filing of any such
document and all reasonable costs and expenses of any record searches for
financing statements Mortgagee shall reasonably
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require. If Mortgagor shall fail to furnish any financing or continuation
statement within 10 days after request by Mortgagee, then pursuant to the
provisions of the Code, Mortgagor hereby authorizes Mortgagee, without the
signature of Mortgagor, to execute and file any such financing and continuation
statements. The filing of any financing or continuation statements in the
records relating to personal property or chattels shall not be construed as in
any way impairing the right of Mortgagee to proceed against any personal
property encumbered by this Mortgage as real property, as set forth above.
20. Trust Funds. All lease security deposits of the Real Estate
shall be treated as trust funds not to be commingled with any other funds of
Mortgagor. Within 10 days after request by Mortgagee, Mortgagor shall furnish
Mortgagee satisfactory evidence of compliance with this subsection, together
with a statement of all lease security deposits by lessees and copies of all
Leases not previously delivered to Mortgagee under which such security deposits
are held, which statement shall be certified by Mortgagor.
21. Additional Rights. The holder of any subordinate lien or
subordinate mortgage on the Mortgaged Property shall have no right to terminate
any Lease whether or not such Lease is subordinate to this Mortgage nor shall
any holder of any subordinate lien or subordinate mortgage join any tenant under
any Lease in any action to foreclose the lien or modify, interfere with, disturb
or terminate the rights of any tenant under any Lease. By recordation of this
Mortgage all subordinate lienholders under subordinate mortgages are subject to
and notified of this provision, and any action taken by any such lienholder or
mortgagee contrary to this provision shall be null and void. Upon the occurrence
of any Event of Default, Mortgagee may, in its sole discretion and without
regard to the adequacy of its security under this Mortgage, apply all or any
part of any amounts on deposit with Mortgagee under this Mortgage against all or
any part of the Indebtedness. Any such application shall not be construed to
cure or waive any Default or Event of Default or invalidate any act taken by
Mortgagee on account of such Default or Event of Default.
22. Changes in Method of Taxation. In the event of the passage after
the date hereof of any law of any Governmental Authority deducting from the
value of the Premises for the purposes of taxation any lien or mortgage thereon,
or changing in any way the laws for the taxation of mortgages or deeds of trust
or debts secured thereby for federal, state or local purposes, or the manner of
collection of any such taxes, and imposing a tax, either directly or indirectly,
on mortgages or deeds of trust or debts secured thereby, the holder of this
Mortgage shall have the right to declare the Indebtedness due on a date to be
specified by not less than 30 days' written notice to be given to Mortgagor
unless within such 30-day period Mortgagor shall assume as an Obligation
hereunder the payment of any tax so imposed until full payment of the
Indebtedness and such assumption shall be permitted by law.
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23. Notices. All notices, requests, demands and other communications
hereunder shall be deemed to have been sufficiently given or served when served
in the same manner as set forth for notices in the Credit Agreement.
24. No Oral Modification. This Mortgage may not be changed or
terminated orally. Any agreement made by Mortgagor and Mortgagee after the date
of this Mortgage relating to this Mortgage shall be superior to the rights of
the holder of any intervening or subordinate mortgage, lien or encumbrance.
25. Partial Invalidity. In the event any one or more of the
provisions contained in this Mortgage shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included. Notwithstanding to the contrary anything contained in this Mortgage or
in any provisions of the Indebtedness or Loan Documents, the obligations of
Mortgagor and of any other obligor under the Indebtedness or Loan Documents
shall be subject to the limitation that Mortgagee shall not charge, take or
receive, nor shall Mortgagor or any other obligor be obligated to pay to
Mortgagee, any amounts constituting interest in excess of the maximum rate
permitted by law to be charged by Mortgagee.
26. Mortgagor's Waiver of Rights. To the fullest extent permitted by
law, Mortgagor waives the benefit of all laws now existing or that may
subsequently be enacted providing for (i) any appraisement before sale of any
portion of the Mortgaged Property, (ii) any extension of the time for the
enforcement of the collection of the Indebtedness or the creation or extension
of a period of redemption from any sale made in collecting such debt and (iii)
exemption of the Mortgaged Property from attachment, levy or sale under
execution or exemption from civil process. To the full extent Mortgagor may do
so, Mortgagor agrees that Mortgagor will not at any time insist upon, plead,
claim or take the benefit or advantage of any law now or hereafter in force
providing for any appraisement, valuation, stay, exemption, extension or
redemption, or requiring foreclosure of this Mortgage before exercising any
other remedy granted hereunder and Mortgagor, for Mortgagor and its successors
and assigns, and for any and all persons ever claiming any interest in the
Mortgaged Property, to the extent permitted by law, hereby waives and releases
all rights of redemption, valuation, appraisement, stay of execution, notice of
election to mature or declare due the whole of the secured indebtedness and
marshalling in the event of foreclosure of the liens hereby created.
27. Remedies Not Exclusive. Mortgagee shall be entitled to enforce
payment of the Indebtedness and performance of the Obligations and to exercise
all rights and powers under this Mortgage or under any of the other Loan
Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Indebtedness and
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Obligations may now or hereafter be otherwise secured, whether by deed of trust,
mortgage, security agreement, pledge, lien, assignment or otherwise. Neither the
acceptance of this Mortgage nor its enforcement, shall prejudice or in any
manner affect Mortgagee's right to realize upon or enforce any other security
now or hereafter held by Mortgagee, it being agreed that Mortgagee shall be
entitled to enforce this Mortgage and any other security now or hereafter held
by Mortgagee in such order and manner as Mortgagee may determine in its absolute
discretion. No remedy herein conferred upon or reserved to Mortgagee is intended
to be exclusive of any other remedy herein or by law provided or permitted, but
each shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. Every
power or remedy given by any of the Loan Documents to Mortgagee or to which
either may otherwise be entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by
Mortgagee. In no event shall Mortgagee, in the exercise of the remedies provided
in this Mortgage (including, without limitation, in connection with the
assignment of Rents, or the appointment of a receiver and the entry of such
receiver on to all or any part of the Mortgaged Property), be deemed a
"mortgagee in possession," and Mortgagee shall not in any way be made liable for
any act, either of commission or omission, in connection with the exercise of
such remedies.
28. Multiple Security. If (a) the Premises shall consist of one or
more parcels, whether or not contiguous and whether or not located in the same
county, or (b) in addition to this Mortgage, Mortgagee shall now or hereafter
hold or be the mortgagee of one or more additional mortgages, liens, deeds of
trust or other security (directly or indirectly) for the Indebtedness upon other
property in the State in which the Premises are located (whether or not such
property is owned by Mortgagor or by others) or (c) both the circumstances
described in clauses (a) and (b) shall be true, then to the fullest extent
permitted by law, Mortgagee may, at its election, commence or consolidate in a
single foreclosure action all foreclosure proceedings against all such
collateral securing the Indebtedness (including the Mortgaged Property), which
action may be brought or consolidated in the courts of, or sale conducted in,
any county in which any of such collateral is located. Mortgagor acknowledges
that the right to maintain a consolidated foreclosure action is a specific
inducement to Mortgagee to extend the Indebtedness, and Mortgagor expressly and
irrevocably waives any objections to the commencement or consolidation of the
foreclosure proceedings in a single action and any objections to the laying of
venue or based on the grounds of forum non conveniens which it may now or
hereafter have. Mortgagor further agrees that if Mortgagee shall be prosecuting
one or more foreclosure or other proceedings against a portion of the Mortgaged
Property or against any collateral other than the Mortgaged Property, which
collateral directly or indirectly secures the Indebtedness, or if Mortgagee
shall have obtained a judgment of foreclosure or similar judgment against such
collateral, then, whether or not such proceedings are being maintained or
judgments were obtained in or outside the State in which
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the Premises are located, Mortgagee may commence or continue any foreclosure
proceedings and exercise its other remedies granted in this Mortgage against all
or any part of the Mortgaged Property and Mortgagor waives any objections to the
commencement or continuation of a foreclosure of this Mortgage or exercise of
any other remedies hereunder based on such other proceedings or judgments, and
waives any right to seek to dismiss, stay, remove, transfer or consolidate
either any action under this Mortgage or such other proceedings on such basis.
Neither the commencement nor continuation of proceedings to foreclose this
Mortgage nor the exercise of any other rights hereunder nor the recovery of any
judgment by Mortgagee in any such proceedings shall prejudice, limit or preclude
Mortgagee's right to commence or continue one or more foreclosure or other
proceedings or obtain a judgment against any other collateral (either in or
outside the State in which the Real Estate is located) which directly or
indirectly secures the Indebtedness, and Mortgagor expressly waives any
objections to the commencement of, continuation of, or entry of a judgment in
such other proceedings or exercise of any remedies in such proceedings based
upon any action or judgment connected to this Mortgage, and Mortgagor also
waives any right to seek to dismiss, stay, remove, transfer or consolidate
either such other proceedings or any sale or action under this Mortgage on such
basis. It is expressly understood and agreed that to the fullest extent
permitted by law, Mortgagee may, at its election, cause the sale of all
collateral which is the subject of a single foreclosure action at either a
single sale or at multiple sales conducted simultaneously and take such other
measures as are appropriate in order to effect the agreement of the parties to
dispose of and administer all collateral securing the Indebtedness (directly or
indirectly) in the most economical and least time-consuming manner.
29. Successors and Assigns. All covenants of Mortgagor contained in
this Mortgage are imposed solely and exclusively for the benefit of Mortgagee
and its respective successors and assigns, and no other person or entity shall
have standing to require compliance with such covenants or be deemed, under any
circumstances, to be a beneficiary of such covenants, any or all of which may be
freely waived in whole or in part by Mortgagee at any time if in its sole
discretion such waiver is deemed advisable. All such covenants of Mortgagor
shall run with the land and bind Mortgagor, the successors and assigns of
Mortgagor (and each of them) and all subsequent owners, encumbrancers and
tenants of the Mortgaged Property, and shall inure to the benefit of Mortgagee
and its respective successors and assigns. The word "Mortgagor" shall be
construed as if it read "Mortgagors" whenever the sense of this Mortgage so
requires and if there shall be more than one Mortgagor, the obligations of the
Mortgagors shall be joint and several.
30. No Waivers, etc. Any failure by Mortgagee to insist upon the
strict performance by Mortgagor of any of the terms and provisions of this
Mortgage shall not be deemed to be a waiver of any of the terms and provisions
hereof, and Mortgagee, notwithstanding any such failure, shall have the right
thereafter to insist upon the strict
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performance by Mortgagor of any and all of the terms and provisions of this
Mortgage to be performed by Mortgagor. Mortgagee may release, regardless of
consideration and without the necessity for any notice to or consent by the
mortgagee of any subordinate mortgage or the holder of any subordinate lien on
the Mortgaged Property, any part of the security held for the obligations
secured by this Mortgage without, as to the remainder of the security, in
anywise impairing or affecting the lien of this Mortgage or the priority of such
lien over any subordinate lien or mortgage.
31. Governing Law, etc. This Mortgage shall be governed by and
construed in accordance with the laws of the State in which the Premises are
located, except that Mortgagor expressly acknowledges that by its terms the
Credit Agreement shall be governed and construed in accordance with the laws of
the State of New York, without regard to principles of conflict of law, and for
purposes of consistency, Mortgagor agrees that in any in personam proceeding
related to this Mortgage the rights of the parties to this Mortgage shall also
be governed by and construed in accordance with the laws of the State of New
York governing contracts made and to be performed in that State, without regard
to principles of conflict of law.
32. Waiver of Trial by Jury. Mortgagor and Mortgagee each hereby
irrevocably and unconditionally waive trial by jury in any action, claim, suit
or proceeding relating to this Mortgage and for any counterclaim brought
therein.
33. Certain Definitions. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Mortgage shall be used interchangeably in singular or plural form and the
word "Mortgagor" shall mean "each Mortgagor or any subsequent owner or owners of
the Mortgaged Property or any part thereof or interest therein," the word
"Mortgagee" shall mean "Mortgagee or any successor Administrative Agent," the
word "Notes" shall mean "the notes that may from time to time be given pursuant
to the terms of the Credit Agreement or any other evidence of indebtedness
secured by this Mortgage," the word "person" shall include any individual,
corporation, partnership, trust, unincorporated association, government,
governmental authority, or other entity, and the words "Mortgaged Property"
shall include any portion of the Mortgaged Property or interest therein.
Whenever the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice versa. The captions in this
Mortgage are for convenience or reference only and in no way limit or amplify
the provisions hereof.
34. Release of Mortgage. Upon payment in full of the Indebtedness,
the termination of all Commitments under the Credit Agreement secured hereby and
the compliance with the Obligations then required to be complied with, Mortgagee
shall release
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the encumbrance of this Mortgage. If any of the Mortgaged Property shall be
sold, transferred or otherwise disposed of by Mortgagor in a transaction
expressly permitted by the Credit Agreement, then Mortgagee shall execute and
deliver (at the sole cost and expense of Mortgagor) all releases, reconveyances
or other documents reasonably necessary or desirable for the release of such
Mortgaged Property from the encumbrance of this Mortgage.
35. Conflict With Credit Agreement. In the event of any conflict or
inconsistency between the terms and provisions of this Mortgage and the terms
and provisions of the Credit Agreement, the terms and provisions of the Credit
Agreement shall govern, other than with respect to the Section of this Mortgage
captioned "Governing Law, etc.". By their execution of the Credit Agreement,
each Lender hereby agrees that it shall not have the right to institute any suit
for enforcement of Notes or any other Indebtedness secured by this Mortgage or
any other Security Document, if and to the extent that the institution or
prosecution thereof or the entry of judgment therein would, under applicable
law, result in the surrender, impairment, waiver or loss of the Lien of this
Mortgage or any other Security Document or impede or delay the enforcement of
the Lien of this Mortgage or any other Security Document.
36. Receipt of Copy. Mortgagor acknowledges that it has received a
true copy of this Mortgage.
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This Mortgage has been duly executed by Mortgagor as of the date
first above written.
Signed, sealed and TELEX COMMUNICATIONS, INC.
delivered in our
presence: By:______________________________________
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
___________________________
Name:
___________________________
Name:
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State of MINNESOTA )
: ss.:
County of DAKOTA )
The foregoing instrument was acknowledged before me this 2nd day of
February, 1998 by Xxxx X. Xxxxxxxxx as Vice President of TELEX COMMUNICATIONS,
INC., a Delaware corporation, on behalf of the corporation.
___________________________
Notary Public
My commission expires:
___________________________
[SEAL]
33
SCHEDULE A
That part of Blocks "A" and "D", CENTRAL ADDITION TO THE VILLAGE OF XXXXXXXX,
according to the plat thereof, recorded February 1, 1867, in Volume 1 of plats,
page 8, and that part of the Northeast Quarter of Section 35, Township 7 South,
Range 18 West, described as follows: Commencing at the Northeast corner of said
Section 35, thence South 89 degrees 49 minutes 37 seconds West (deeded West) on
the North line of said Section 35 a distance of 399.90 feet, thence South 00
degrees 18 minutes 00 seconds West 33.00 feet to the intersection of the South
line of Front Street and the West line of Days Avenue and the point of beginning
of the land herein described, thence continuing South 00 degrees 18 minutes 00
seconds West on the West line of Days Avenue 230.25 feet to a brass monument,
thence North 89 degrees 45 minutes 00 seconds West 127.90 feet to a brass
monument, thence North 00 degrees 12 minutes 30 seconds East 113.04 feet to a
brass monument, thence North 69 degrees 57 minutes 00 seconds East 4.08 feet to
a brass monument, thence North 00 degrees 21 minutes 00 seconds East 15.23 feet
to a brass monument at the Southwest corner of said Xxx 0, Xxxxx "X", xxxx xxxx,
thence East on the South line of said Lot 4 a distance of 29.50 feet to a brass
monument at the Southeast corner of said Lot 4, thence North 00 degrees 21
minutes 00 seconds East 18.94 feet to the South wall of a brick building, thence
East 1.00 foot along said South wall to the Southeast corner of said building,
thence North 00 degrees 05 minutes 00 seconds West along the East wall of said
building 81.06 feet to the South line of Front Street, thence East on the South
line of Front Street 94.27 feet to the point of beginning.
Tax Item No. 11-58-1150-0001-00-5
Such property is located at 000 Xxxx Xxxxx Xxxxxx, Xxxx of Xxxxxxxx, Berrien
County, Michigan.
