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EXHIBIT 10.1
AMENDED, RESTATED AND CONSOLIDATED MORTGAGE
BY AND BETWEEN
RAMCO-XXXXXXXXXX PROPERTIES, L.P., MORTGAGOR,
AND
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY, MORTGAGEE
THIS MORTGAGE SECURES FUTURE ADVANCES
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TABLE OF CONTENTS
Page #
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ARTICLE I
THE OBLIGATIONS............................................. 3
Section 1.01. The Indebtedness Secured by this Mortgage....................................................... 3
Section 1.02. Other Matters Secured by this Mortgage.......................................................... 3
Section 1.03. First Lien Status............................................................................... 3
ARTICLE II
REPRESENTATIONS, COVENANTS, WARRANTIES AND AGREEMENTS OF MORTGAGOR.................... 3
Section 2.01. Title........................................................................................... 3
Section 2.02. Payment of Secured Indebtedness................................................................. 4
Section 2.03. Sale or Conveyance.............................................................................. 4
Section 2.04. Junior Mortgages................................................................................ 5
Section 2.05. Compliance with Laws............................................................................ 5
Section 2.06. Further Instruments............................................................................. 5
Section 2.07. No Liens........................................................................................ 6
ARTICLE III
LEASES AND ASSIGNMENT OF RENTS AND PROFITS................................ 6
Section 3.01. Assignment of Rents and Profits................................................................. 6
Section 3.02. Covenants Regarding Performance of Lessor's Obligations......................................... 6
Section 3.03. Negative Covenants Regarding Lease(s)........................................................... 6
Section 3.04. Breaches Regarding Lease(s) or Assignments(s) Thereof........................................... 6
Section 3.05. Oil, Gas or Mineral Leases...................................................................... 6
Section 3.06. Estoppel Certificates........................................................................... 6
Section 3.07. Future Leases................................................................................... 6
Section 3.08. Application of Rents and Other Income........................................................... 7
Section 3.09. Priority of Application......................................................................... 7
Section 3.10. Accountability for Rents........................................................................ 7
Section 3.11. Liability for Agents............................................................................ 7
Section 3.12. Liability for Premises.......................................................................... 7
Section 3.13. Status of Lease(s)/Notice of Default............................................................ 7
Section 3.14. Mortgagee's Right to Perform for Mortgagor/Lessor............................................... 7
Section 3.15. Subleases Included.............................................................................. 8
Section 3.16. Assignment...................................................................................... 8
ARTICLE IV
DEFAULTS AND REMEDIES.......................................... 8
Section 4.01. Events of Default............................................................................... 8
Section 4.02. Remedies........................................................................................ 9
Section 4.03. Secured Party Remedies..........................................................................10
Section 4.04. Receiver........................................................................................10
Section 4.05. Retention of Possession.........................................................................11
Section 4.06. Remedies Not Exclusive..........................................................................11
Section 4.07. Forbearance, etc. Not a Waiver..................................................................11
Section 4.08. Additional Amount Due After Acceleration........................................................11
ARTICLE V
SECURITY AGREEMENT............................................11
Section 5.01. Personal Property to be Covered as Part of Real Property; Fixtures; Mortgage to also
Constitute Security Agreement as to Personal Property Deemed Not to be Affixed to
Real Property or Adapted to the Use Thereof................................................11
Section 5.02. Creation of Security Interest...................................................................11
Section 5.03. Warranties, Representations and Covenants.......................................................11
ARTICLE VI
MISCELLANEOUS..............................................12
Section 6.01. Certain Additional Powers of Mortgagee; Sale No Effect on Liability.............................12
Section 6.02. Mortgagor's Duty to Defend and Pay Expenses.....................................................12
Section 6.03. Documentary or Internal Revenue Stamps..........................................................13
Section 6.04. Tax on Mortgage.................................................................................13
Section 6.05. Filing and Recording Fees.......................................................................13
Section 6.06. Notices.........................................................................................13
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Section 6.07. Waiver of Rights by Mortgagor...................................................................13
Section 6.08. Joint and Several Liability.....................................................................14
Section 6.09. Severability....................................................................................14
Section 6.10. Covenants "To Run With Land"; Successors and Assigns............................................14
Section 6.11. Definitions.....................................................................................14
Section 6.12. Governing Law...................................................................................14
Section 6.13. Modification Procedure..........................................................................14
Section 6.14. Captions........................................................................................14
Section 6.15. Future Advance Mortgage.........................................................................14
Section 6.16. Jurisdiction....................................................................................14
Section 6.17. Waiver of Trial by Jury.........................................................................14
Section 6.18. Additional Provisions...........................................................................14
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AMENDED, RESTATED AND CONSOLIDATED MORTGAGE
LOAN NOS. 157670, 157670-01, 158186 AND 158186-01
THIS AMENDED, RESTATED AND CONSOLIDATED MORTGAGE (hereinafter the
"Mortgage"), is made the ______ day of August, 2000, by RAMCO-XXXXXXXXXX
PROPERTIES, L.P., a Delaware limited partnership ("Mortgagor"), whose address is
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, in favor of
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY, an Indiana corporation ("Lincoln"),
Individually, and as Agent for FIRST PENN-PACIFIC LIFE INSURANCE COMPANY, an
Indiana corporation ("Participant #1"), LINCOLN NATIONAL HEALTH & CASUALTY
INSURANCE COMPANY, an Indiana corporation ("Participant #2), and LINCOLN
NATIONAL REASSURANCE COMPANY, an Indiana corporation ("Participant #3")
(Participant #1, Participant #2 and Participant #3 are collectively referred to
herein as the "Participants"), whose notice address is c/o Lincoln Investment
Management, Inc., 000 Xxxx Xxxxx Xxxxxx, X.X. Xxx 0000, Xxxx Xxxxx, Xxxxxxx
00000, Attention: Loan Servicing, Loan Nos. 157670 and 158186 (Lincoln,
Individually and in its capacity as Agent for the Participants, is collectively
referred to herein as the "Mortgagee").
WITNESSETH, to secure the payment of an indebtedness in the original
principal sum of One Hundred Fifteen Million Four Hundred Thirty-Two Thousand
Three Hundred Three and 49/100 Dollars ($115,432,303.49), in lawful money of the
United States, together with interest at the rate of Seven and 17/100 percent
(7.17%) per annum on the Original Loan No. 158186 Note (as defined below), Seven
and 77/100 percent (7.77%) per annum on the Original Loan No. 157774 Note (as
defined below), Eight and 28/100 percent (8.28%) per annum on the Original Loan
No. 157670 Note (as defined below), and Eight and 81/100 percent (8.81%) per
annum on the New Notes (as defined below), from the date of disbursement thereof
on the unpaid principal, the final payments of which are due and payable on the
10th day of January, 2006, and with interest on all overdue principal and other
sums due under such Notes at the default rate provided for in such Notes, to be
paid in installments, according to the terms and conditions of (a) that certain
Note dated May 1, 1996 in the original principal amount of $77,585,524.73
executed by Mortgagor and payable to the order of Lincoln (the "Original Loan
Xx. 000000 Xxxx"), (x) that certain Note dated May 1, 1996 in the original
principal amount of $4,346,778.76 executed by Mortgagor and payable to the order
of Lincoln (the "Original Loan No. 157774 Note"), (c) that certain Note dated
December 17, 1997 in the original principal amount of $8,500,000.00 executed by
Mortgagor and payable to the order of Lincoln (the "Original Loan Xx. 000000
Xxxx"), (x) that certain Note of even date herewith in the original principal
amount of $16,081,090.00 executed by Mortgagor and payable to the order of
Lincoln, (e) that certain Note of even date herewith in the original principal
amount of $2,386,270.00 executed by Mortgagor and payable to the order of
Lincoln, (f) that certain Note of even date herewith in the original principal
amount of $1,279,412.00 executed by Mortgagor and payable to the order of
Lincoln (the Notes described in (a) through (f) of this Paragraph are
collectively referred to herein as the "Retainage Notes"), (g) that certain Note
of even date herewith in the original principal amount of $2,455,128.00 executed
by Mortgagor and payable to the order of Participant #1, (h) that certain Note
in the original principal amount of $245,513.00 executed by Mortgagor and
payable to the order of Participant #2, (i) that certain Note of even date
herewith in the original principal amount of $368,269.00 executed by Mortgagor
and payable to the order of Participant #3, (j) that certain Note of even date
herewith in the original principal amount of $2,013,730.00 executed by Mortgagor
and payable to the order of Participant #1, and (k) that certain Note of even
date herewith in the original principal amount of $170,588.00 executed by
Mortgagor and payable to the order of Participant #2 (the note(s) described in
this Paragraph and any notes issued in exchange therefor or in replacement
thereof and any modifications, extensions, and renewals thereof, are herein
collectively called the "Note" (the Notes described in (a), (d), (g), (h) and
(i) above are collectively referred to herein as the "Loan No. 157670 Notes",
the Notes described in (c), (f) and (k) above are collectively referred to
herein as the "Loan No. 158186 Notes", and the Notes described in (b), (e) and
(j) above are collectively referred to herein as the "Loan No. 157774 Notes"),
and to secure the performance of the covenants hereinafter contained or
contained in the Note, the Loan Agreements (as hereinafter defined) and the
Collateral Loan Documents (as hereinafter defined), Mortgagor does hereby grant,
bargain, sell, convey, assign, transfer, pledge, deliver, set over, grant a
security interest in, mortgage and warrant unto Mortgagee and to its successors
and assigns:
1. (i) All of that certain piece or lot of land, and all issues and
profits therefrom situated in the (a) Township of Blackman, Xxxxxxx County,
Michigan, described on EXHIBIT A-1 ATTACHED HERETO AND MADE A PART HEREOF BY
THIS REFERENCE, (b) Township of Xxxxxx, Xxxxx County, Michigan, described on
EXHIBIT A-2 ATTACHED HERETO AND MADE A PART HEREOF BY THIS REFERENCE, (c)
Township of Blackman, Xxxxxxx County, Michigan, described on EXHIBIT A-3
ATTACHED HERETO AND MADE A PART HEREOF BY THIS REFERENCE, (d) Township of
Blackman, Xxxxxxx County, Michigan, described on EXHIBIT A-4 ATTACHED HERETO AND
MADE A PART HEREOF BY THIS REFERENCE, (e) City of Sterling Heights, Macomb
County, Michigan, described on EXHIBIT A-5 ATTACHED HERETO AND MADE A PART
HEREOF BY THIS REFERENCE, (f) City of Roseville, Macomb County, Michigan,
described on EXHIBIT A-6 ATTACHED HERETO AND MADE A PART HEREOF BY THIS
REFERENCE, (g) City of Flint, Genessee County, Michigan, described on EXHIBIT
A-7 ATTACHED HERETO AND MADE A PART HEREOF BY THIS REFERENCE, (h) City of
Southfield, Oakland County, Michigan, described on EXHIBIT A-8 ATTACHED HERETO
AND MADE A PART HEREOF BY THIS REFERENCE, (i) City of Southfield, Oakland
County, Michigan, described on EXHIBIT A-9 ATTACHED HERETO AND MADE A PART
HEREOF BY THIS REFERENCE, and (j) Township of Orion, Oakland County, Michigan,
described on EXHIBIT A-10 ATTACHED HERETO AND MADE A PART HEREOF BY THIS
REFERENCE, and (ii) the leasehold interest in that certain piece or lot of land,
and all issues and profits therefrom situated in the Township of Orion, Oakland
County, Michigan, described on EXHIBIT A-11 ATTACHED HERETO AND MADE A PART
HEREOF BY THIS REFERENCE, created pursuant to the terms and conditions of that
certain Ground Lease dated February 23,
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1976, by and between Lake Orion Furniture and Appliance, Inc. (the holder from
time to time of the lessor's interest in such Ground Lease is referred to herein
as the "Owner") and Mortgagor, as amended pursuant to a Multi-Party Agreement of
even date herewith by and among Mortgagor, Mortgagee and Ground Lessor (the
"Ground Lease") (all of the foregoing collectively referred to herein as the
"Real Property") (the Real Property described in EXHIBITS X-0, X-0, X-0, X-0,
X-0, X-0, X-0, A-8 and A-9 hereof shall be individually referred to herein as a
"Parcel" and the Real Property described in EXHIBITS A-10 and A-11 hereof are
collectively referred to herein as a "Parcel"), together with all and singular
the tenements, hereditaments and appurtenances thereto belonging or in anywise
appertaining, including all rights and privileges of ingress and egress for the
benefit thereof, and the reversion or reversions, remainder and remainders
thereof; and all the estate, right, title, interest, property, claim and demand
whatsoever of Mortgagor, of, in and to the same and of, in and to every part and
parcel thereof.
2. All right, title and interest of, Mortgagor in and to all
structures, buildings and other improvements now upon or which may hereafter be
put upon the Real Property, including all building equipment and fixtures of
every kind and nature (hereinafter referred to as the "Improvements").
3. All right, title and interest of Mortgagor in and to all fixtures
and personal property now or hereafter attached to, or used or adapted for use
in the operation of, the Real Property or the Improvements, including but
without being limited to, all inventory, machinery, apparatus, equipment,
fittings, fixtures (except personal property and trade fixtures belonging to any
tenant), whether actually or constructively attached to the Real Property or the
Improvements and including all domestic and ornamental fixtures, and articles of
personal property of every kind and nature whatsoever (hereinafter collectively
called "Personal Property"), now or hereafter located in, upon or under the Real
Property or the Improvements or any part thereof and used or useable in
connection with any present or future operation of the Real Property or the
Improvements, including but not limiting the generality of the foregoing, all
heating, air conditioning, sprinklers, freezing, lighting, laundry, incinerating
and dynamo and generating equipment; engines, pipes, pumps, tanks, motors,
conduits; switchboards, plumbing and plumbing fixtures; lifting, cleaning, fire
prevention, fire extinguishing, refrigerating, ventilating and communications
apparatus; boilers, ranges, furnaces, oil burners or units thereof; appliances;
vacuum cleaning systems; elevators, escalators; shades, awnings, screens; storm
doors and windows; stoves; refrigerators; cooking apparatus and mechanical
equipment, gas and electric fixtures; electrical and water distribution systems;
water purification systems; partitions, furniture of any public spaces, halls
and lobbies; attached cabinets; partitions; ducts and compressors; rugs and
carpets; draperies, furniture and furnishings used in the operation of the Real
Property or the Improvements; together with all additions thereto and
replacements thereof (Mortgagor hereby agreeing with respect to all additions
and replacements, to execute and deliver from time to time such further
instruments as may be requested by Mortgagee to confirm the conveyance, transfer
and assignment of and granting of a security interest in any of the foregoing);
and including also all interest of any owner of the Real Property or the
Improvements in any of such items hereafter at any time acquired under
conditional sale contract, chattel mortgage or other title retaining or security
instrument, all of which property mentioned in this paragraph shall be deemed a
part of the realty and not severable wholly or in part without material injury
to the freehold.
4. Any and all right, title and interest of Mortgagor to the proceeds
of all insurance in effect with respect to the Premises (as hereinafter defined)
and to any and all awards or payments, including interest thereon, and the right
to receive the same, which may be made with respect to the Premises as a result
of (a) the exercise of the right of eminent domain, (b) alteration of the grade
of any street, or (c) any other injury to or decrease in the value of the
Premises, to the extent of all amounts which may be secured by this Mortgage at
the date of receipt of any such award or payment by Mortgagee, and of the
reasonable counsel fees, costs and disbursements incurred by Mortgagee in
connection with the collection of such proceeds, award or payment. Mortgagor
agrees to execute and deliver, from time to time, such further instruments as
may be requested by Mortgagee to confirm such assignment to Mortgagee of any
such proceeds, award or payment.
5. All right, title and interest of Mortgagor, now owned or hereafter
acquired, in and to the land lying in the bed or within the right of way of any
street, road or avenue, opened or proposed, in front of or adjoining the Real
Property to the center line thereof and all water and water rights pertaining to
the Real Property.
6. All the rents, issues and profits thereof under present or future
leases, or otherwise with respect to the Real Property, including without
limitation, all cash, accounts, accounts receivable, book debts, contract rights
and other forms of obligation belonging to or owing to Mortgagor, whether
arising from goods sold or services rendered by Mortgagor, or from any other
transactions, and all claims, choses in action, proceeds, improvements,
betterments, renewals, substitutes, replacements and additions arising from or
relating to the Premises which are hereby specifically assigned, transferred and
set over to Mortgagee, including but not limited to all rights conferred by Act
210 of the Public Acts of 1953 [MCLA 554.231 et seq.; MSA 26.1137(1) et seq.].
7. All leasehold estate, right, title and interest of Mortgagor in any
ground lease(s) covering the above-described Real Property or any portion
thereof, now or hereafter existing or entered into, as well as to any
after-acquired fee.
8. All leases of the Real Property, Improvements or Personal Property
now or hereafter entered into and all right, title and interest of Mortgagor
thereunder, including, without limitation, cash or securities deposited
thereunder to secure performance by the lessees of their obligations thereunder,
whether such cash or securities are to be held until the expiration of the terms
of such leases or applied to one or more of the installments of rent coming due
immediately prior to the expiration of such terms, including, further, the right
upon the happening of a Default (as hereinafter defined), to receive and collect
the rents thereunder.
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All of the foregoing with the appurtenances thereunto belonging, are
collectively referred to herein as the "Premises." The portion of the Premises
pertaining to a Parcel shall be referred to herein as a "Tract".
TO HAVE AND TO HOLD to Mortgagee, its successors and assigns, the
Premises and all of Mortgagor's interests therein, including without limitation,
its fee ownership interest in the Parcels described in EXHIBITS A-1 through A-10
hereof and the leasehold interest in the Parcel described in EXHIBIT A-11
pursuant to the Ground Lease, and Mortgagor hereby covenants that Mortgagor is
lawfully seized of its fee interest in the Parcels described in EXHIBITS A-1
through A-10 hereof and the Improvements and its leasehold estate in the Parcel
described in EXHIBIT A-11 hereof pursuant to the Ground Lease, and has good
right to sell, mortgage and convey the same, and the same is free from all
encumbrances whatsoever, except the Permitted Exceptions (as defined in Section
2.01); and hereby covenants and binds itself and its successors and assigns to
warrant and forever defend the title thereto against the lawful claims of all
persons.
ARTICLE I
THE OBLIGATIONS
Section 1.01. The Indebtedness Secured by this Mortgage. This Mortgage
delivered by Mortgagor and accepted by Mortgagee, and all rights, title,
interests, liens, security interests, powers and privileges created hereby or
arising by virtue hereof are given to secure the payment of a loan in the
original principal amount of $77,585,524.73 made to Borrower (the "Original Loan
No. 157670"), a loan in the original principal amount of $4,346,778.76 made to
Borrower (the "Original Loan No. 157774"), a loan in the original principal
amount of $8,500,000.00 made to Borrower (the "Original Loan No. 158186"), and
three loans in the aggregate original principal amount of $25,000,000.00 made to
Borrower (collectively, the "New Loan") (the Original Loan No. 157670, Original
Loan No. 157774, Original Loan No. 158186, and the New Loan are collectively
referred to herein as the "Loan"), evidenced by the Note, the terms of which are
incorporated herein by this reference, and to secure the payment of all interest
payable as set forth therein.
The Note provides for the payment of attorneys' fees and expenses and
costs of collection, in certain events, all of which are secured hereby and
provides for the acceleration of payments at the option of the holder in certain
contingencies.
Section 1.02. Other Matters Secured by this Mortgage. This Mortgage
further secures:
(a) Payment and performance of the obligations, covenants and
agreements contained in the Note and any and all modifications, extensions or
renewals thereof;
(b) Payment and performance of the obligations, covenants and
agreements contained in that certain Loan Agreement dated May 1, 1996 entered
into by Mortgagor and Lincoln with respect to Loan No. 157670, that certain Loan
Agreement dated May 1, 1996 entered into by Mortgagor and Lincoln with respect
to Loan No. 157774, and that certain Loan Agreement dated December 17, 1997
entered into by Mortgagor and Lincoln with respect to Loan No. 158186, as each
has been amended pursuant to that certain Amendment to Loan Documents of even
date herewith among Mortgagor, Ramco-Xxxxxxxxxx Properties Trust, a Maryland
real estate investment trust, and Mortgagee (collectively, the "Loan
Agreements"), the terms and conditions of said Loan Agreements being
incorporated herein by this reference;
(c) Payment of all other sums (including, without limitation, any
future advances made by Mortgagee for or on account of Mortgagor) becoming due
or payable under, and the performance of all other obligations, covenants and
agreements contained in (i) the Note; (ii) this Mortgage; (iii) that certain
Mortgage and Security Agreement dated May 1, 1996 entered into with respect to
Loan No. 157774 and recorded in Liber 16282, Page 110, Oakland County Records,
as amended pursuant to that certain Amendment to Mortgage dated December 17,
1997 and recorded in Liber 17932, Page 92, Oakland County Records, and that
certain Second Amendment to Mortgage of even date herewith executed by
Mortgagor, Mortgagee and Xxxxxxx Xxxx (the "West Oaks Mortgage"); or (iii) any
other instrument given as security for the Note or entered into with respect to
the Loan, including without limitation, the Loan Agreements, and the Commitments
and the Environmental Indemnity Agreements (as defined in the Loan Agreements)
(such other instruments being collectively referred to herein as the "Collateral
Loan Documents"), together with interest thereon after Default, and on any other
sums not paid when due at the applicable default rate; and
(d) Payment of such additional sums and interest thereon owing solely
on the Note.
The obligations set forth in Sections 1.01 and 1.02, together with any
other sums now or hereafter secured hereby, are sometimes collectively referred
to herein as the "Secured Indebtedness."
Section 1.03. First Lien Status. The lien and security interest created
hereby secure the payment of the Secured Indebtedness, including the
indebtedness evidenced by the Note, interest, attorneys' fees, and monies
advanced, if any, for the use of Mortgagor under any provision hereof,
regardless of the date of delivery, transfer or maturity, and shall be and
remain a first and prior lien and security interest encumbering the Premises.
ARTICLE II
REPRESENTATIONS, COVENANTS, WARRANTIES AND AGREEMENTS OF MORTGAGOR
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TO PROTECT AND MAINTAIN THE SECURITY OF THIS MORTGAGE, Mortgagor
represents, covenants, warrants and agrees to and with Mortgagee as follows:
Section 2.01. Title. Mortgagor has good and marketable fee simple title
to the Real Property described in EXHIBITS A-1 through A-10 hereof, Mortgagor
has a valid and subsisting leasehold estate in the real property described in
EXHIBIT A-11 hereof as lessee under the Ground Lease, and has good and
marketable title to the Improvements (and clear title to the Personal Property),
and is lawfully seized and possessed of the same, and has the full power,
authority and right to convey the same and to execute and deliver this Mortgage;
the Premises are unencumbered except as may be herein expressly provided (and
except for those title exceptions which have been approved by Mortgagee and
which appear as exceptions under Schedule B of the loan title insurance policy
issued to Mortgagee insuring this Mortgage (the "Permitted Exceptions")); and
Mortgagor will forever warrant and defend the title to the Premises unto
Mortgagee against the claims of all persons whomsoever.
Section 2.02. Payment of Secured Indebtedness. Mortgagor will
punctually pay, in lawful money of the United States, all sums due Mortgagee at
the time and in the manner mentioned in the Note, this Mortgage, and the
Collateral Loan Documents, or any document evidencing a future advance or any
other instrument evidencing and/or securing the Secured Indebtedness.
Section 2.03. Sale or Conveyance.
(a) Mortgagor agrees that Mortgagee's willingness to enter into the
financial transaction represented by the Note and secured by this Mortgage is
expressly based in part upon Mortgagor's financial strength and creditworthiness
(and if the Loan is nonrecourse, in light of, among other things, the exceptions
to exculpation set out in EXHIBIT A, Section A1 of the Note), together with
Mortgagor's ability to develop, improve, lease, operate and manage the business
to be conducted upon the Premises. Mortgagor agrees that these considerations
are material to Mortgagee. Therefore, any Transfer (as defined below) of all or
any part of the Premises or any interest therein, whether voluntarily,
involuntarily or by operation of law, shall be prohibited. Any Transfer in
violation of this Mortgage shall constitute a Default hereunder.
If the Mortgagee in its sole and absolute discretion does not declare a
Default, but instead consents to a Transfer, it is expressly acknowledged and
agreed by Mortgagor that, among other things: (i) Mortgagee may condition any
consent to a Transfer upon payment to Mortgagee of a transfer fee equal to one
percent (1%) of the principal balance of the Loan at the time of Transfer (which
shall be calculated prior to any principal reduction Mortgagee may require in
connection with such Transfer); (ii) Mortgagee will require the transferee to
assume, subject to all applicable non-recourse exculpations set forth in the
Note, in writing all of Mortgagor's obligations under the Note, this Mortgage,
and the Collateral Loan Documents; (iii) Mortgagee will require Mortgagor and
transferee to execute any and all revisions or amendments to the Note, this
Mortgage, or the Collateral Loan Documents to conform to the then current form
of Mortgagee's standard loan documents and to execute any additional documents
requested by Mortgagee so long as such revisions do not increase Mortgagor's
liabilities hereunder; (iv) Mortgagee will require an endorsement to its title
insurance policy and the hazard insurance policy on the Premises in form
satisfactory to it; and (v) parties other than Mortgagee shall pay all expenses
arising from such Transfer (including but not limited to the reasonable fees of
Mortgagee's outside counsel). If Mortgagee shall consent to any one such
Transfer and assumption, such consent shall not constitute a waiver of
Mortgagee's rights hereunder as to any future or successive Transfers, and the
same shall not operate to release Mortgagor or any guarantor or surety of any of
the Secured Indebtedness, from any obligation hereunder, under the Note or the
Collateral Loan Documents or under any guaranty of the Secured Indebtedness
unless they are specifically released by a release instrument executed by
Mortgagee.
As used herein, "Transfer" shall mean the following:
(i) The sale, option to sell, contract to sell, agreement to sell,
transfer, conveyance, assignment, disposal, sale by installment purchase
contract of the Premises, or any portion thereof, or any interest therein,
whether voluntary or involuntary (except by eminent domain), by operation of law
or otherwise;
(ii) The lease (except leases expressly permitted in Article III of
this Mortgage or EXHIBIT B, Section 4 hereof) of all or any portion of the
Premises;
(iii) A change in the management of Mortgagor or in the management of
the Premises to a person or entity other than the general partner of Mortgagor
or a manager approved by Mortgagee;
(iv) Any change in the character or use of the Premises so long as
Mortgagee, in its sole discretion, determines such new use to be inconsistent
with a retail/commercial shopping center; and
(v) Any change in the legal or equitable title of the Premises or in
the status or right(s) to occupy the Premises whether pursuant to leases (except
leases expressly permitted in Article 3 of this Mortgage or EXHIBIT B, Section 4
hereof), licenses, easements, or other instruments whether or not of record and
whether or not for consideration.
See Exhibit B, Additional Provisions, Sections B2 and B3.
(b) Without limitation on the rights and remedies of Mortgagee arising
under this Mortgage, in the event that Mortgagor or any subsequent owner of the
Premises or any part thereof shall at any time sell, convey or transfer or
attempt to sell, convey or transfer the Premises or any part thereof, directly
or indirectly, voluntarily or
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involuntarily, in violation of the provisions of paragraph 2.05(b) (concerning
"ERISA") of this Mortgage, then Mortgagee shall, in addition to any other rights
and remedies it may have at law or in equity or under this Mortgage, be entitled
to a decree or order restraining and enjoining such sale, conveyance or
transfer, and Mortgagor or such subsequent owner shall not plead in defense
thereof that there would be an adequate remedy at law (it being hereby expressly
acknowledged and agreed that damages at law would be an inadequate remedy for
breach or threatened breach of the provisions of paragraph 2.05(b)(iii) of this
Mortgage).
(c) Mortgagor agrees that it shall pay all costs and expenses,
including reasonable attorneys' fees, appraisal fees, recording costs, the cost
of any title insurance policies or endorsements, surveys, environmental
assessments and studies, modifications to loan documents, and legal opinions
incurred or required by Mortgagee or its attorneys in connection with any of the
transactions set forth in this Section 2.03. Said payment shall be due and
payable on demand and the obligation to make said payment shall be secured
hereby and shall be enforceable whether or not such transaction is consummated.
(d) If Mortgagor shall make any Transfer prohibited by this Section
2.03, the Mortgagee shall have the right to deliver notices to, receive payments
from, give waivers or consents to, and otherwise deal with the assignee or
transferee of such interest with reference to this Mortgage and the Note as
though the assignee or transferee were the Mortgagor hereunder, but without
discharging Mortgagor from any liability hereunder or under the Note, and
Mortgagor shall remain primarily liable, as principal and not as a surety, for
the payment of the Note and the performance of its obligations hereunder, and
Mortgagor hereby waives all suretyship or similar defenses which might otherwise
be available to it. Any such dealing with a transferee shall not be a waiver by
the Mortgagee of its rights contained in this Section 2.03. Nothing in this
paragraph shall be deemed to modify the provisions of EXHIBIT B, if any, of this
Mortgage.
Section 2.04. Junior Mortgages. Except for this Mortgage and purchase
money security interests in personal property, Mortgagor will not execute or
deliver any pledge, security agreement, mortgage or deed of trust covering all
or any portion of the Premises. It is understood and agreed that Mortgagee shall
be under no obligation whatsoever to consent to any proposed encumbrance.
Section 2.05. Compliance with Laws.
(a) To the best of its knowledge, Mortgagor represents and warrants
that to date it has fully complied with all laws, ordinances, rulings,
regulations, and orders of all governmental authorities affecting the Premises
(including but not limited to zoning, land use and environmental laws,
ordinances, rulings, regulations and/or orders) and has obtained all necessary
and proper permits and licenses for development, use and operation of the
Premises. Mortgagor warrants (i) that the Premises currently comply with the
Americans with Disabilities Act of 1990 (the "ADA") and the Fair Housing Act of
1988 (the "FHA") to the extent applicable, and (ii) that Mortgagor will maintain
the Premises and perform all alterations, modifications and additions to the
Premises in compliance with the ADA and the FHA, as the same may be amended from
time to time. Mortgagor further covenants and agrees that it will comply with or
cause to be complied with all present and future laws, statutes, ordinances,
rulings, regulations, orders and requirements of all federal, state, municipal,
county, and other governmental agencies and authorities applicable to Mortgagor
or to the Premises, as well as all covenants, conditions, and restrictions
affecting same.
(b) Mortgagor covenants, represents and warrants that (i) no assets of
any employee benefit plan (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974 ("ERISA"), as now or hereafter amended) will be used
in the satisfaction, exercise or performance of any of the obligations, rights
or transactions specified or contemplated herein or in the Note or in any of the
Collateral Loan Documents; (ii) the Premises do not now, and without the prior
written consent of Mortgagee will not, constitute an asset of any such employee
benefit plan; and (iii) notwithstanding any other provisions of this Mortgage,
Mortgagor will not sell, convey or transfer the Premises, or any part thereof,
to any person or entity which at the time of such transfer does not satisfy the
representations set forth in clauses (i) and (ii) above regardless of whether
any of the above described conditions arises by operation of law or otherwise.
(c) Mortgagor represents and warrants to the Mortgagee that, as of the
date of execution and delivery of this Mortgage, (i) at least 50% of its assets,
valued at cost (other than short-term investments pending long-term commitment
or distribution to investors), are invested in real estate which is managed or
developed and with respect to which Mortgagor has the right to substantially
participate directly in the management or development activities; and (ii) it in
the ordinary course of its businesses is engaged directly in real estate
management, acquisitions or development activities.
(d) Mortgagor hereby covenants that until payment in full of the
Secured Indebtedness, it will operate its affairs so as to satisfy the
requirements for, and shall not commit nor suffer the commission of any act
which would with the passage of time cause the Mortgagor to lose its status as,
a "real estate operating company" as set forth in the Department of Labor
Regulations Section 2510.3 -- 101(e) from time to time in effect under ERISA;
provided, however, that Mortgagor shall not be prohibited from engaging in any
transaction which would cause it to lose such status so long as prior to
entering into the transaction (1) it provides notice to Mortgagee of the
proposed transaction and (2) at the sole and absolute discretion of Mortgagee,
it pays to Mortgagee the entire principal amount of the Secured Indebtedness,
together with interest thereon and an appropriate prepayment premium determined
in accordance with the terms of the Note and the date of the proposed
transaction.
(e) Contemporaneously with the execution and delivery of this Mortgage,
Mortgagor has delivered to Mortgagee a sworn affidavit that Mortgagor is a
United States person (as defined by Section 7701(a)(30) of the
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Internal Revenue Code of 1986, as amended) (the "Code") and that Mortgagor is
not a foreign person, foreign corporation, foreign partnership, foreign trust or
foreign estate within the meaning of Section 1445(f)(3) of the Code. The sale,
conveyance or transfer of the Premises, or any part thereof, to any foreign
person, foreign corporation, foreign partnership, foreign trust or foreign
estate within the meaning of Section 1445(f) of the Code, without the prior
written consent of Mortgagee, shall constitute a Default hereunder, and
Mortgagor further covenants, represents and warrants that Mortgagor shall notify
Mortgagee within ten (10) days after any event or occurrence which would cause
or result in the representations and certifications made to Mortgagee in such
affidavit to become untrue, invalid or incorrect.
Section 2.06. Further Instruments. So long as Mortgagor's liability for
amounts due hereunder is not increased, Mortgagor shall execute and deliver (and
pay the costs of preparation and recording thereof) to Mortgagee and to any
subsequent holder of the Secured Indebtedness, from time to time, upon demand,
any further instrument or instruments, including, but not limited to, deeds of
trust, mortgages, security agreements, financing statements, continuation
statements, leases, assignments, and renewal and substitution notes, so as to
reaffirm, to correct and to perfect the evidence of the obligations hereby
secured and the lien, security interest and title of Mortgagee to all or any
part of the Premises intended to be hereby conveyed, whether now conveyed, later
substituted for, or acquired subsequent to the date of this Mortgage and
extensions or modifications thereof.
Section 2.07. No Liens. Mortgagor shall not permit any mechanics',
merchants', laborers' or materialmen's liens to stand against the Premises. If
any such lien shall at any time be recorded against the Premises, then Mortgagor
shall (i) give written notice thereof promptly to Mortgagee and (ii) cause the
same to be discharged of record within thirty (30) days after the date of
recording of the same, either by payment, deposit or bond. If Mortgagor fails to
discharge any such lien within such period, then Mortgagee, in addition to any
other right or remedy hereunder, shall have the option (but not the obligation)
to procure the discharge of such lien either by payment of the amount claimed,
by depositing the amount claimed to be due in court, or by bonding. Any amount
paid or deposited by Mortgagee to discharge such lien, and all costs and other
expenses, including all reasonable attorneys' fees, incurred in defending any
action to foreclose such lien, shall be deemed a part of the Secured
Indebtedness and shall be immediately due and payable, without demand.
ARTICLE III
LEASES AND ASSIGNMENT OF RENTS AND PROFITS
See Exhibit B, Additional Provisions, Section B4.
Section 3.01. Assignment of Rents and Profits. In order to provide a
source for future payment of the Secured Indebtedness, Mortgagor hereby
absolutely, unconditionally and irrevocably grants, transfers, conveys and
assigns to Mortgagee all the rents, issues and profits (now or hereafter
created) from the Premises including, without limitation, all cash, accounts,
accounts receivable, book debt, contract rights and other obligations owing to
or belonging to Mortgagor and other funds paid or payable to Mortgagor in
connection with the Premises, whether by tenants or otherwise, and hereby gives
to and confers upon Mortgagee the right, power, and authority to collect such
rents, issues and profits. Mortgagor irrevocably appoints Mortgagee its true and
lawful attorney or agent in fact, coupled with an interest, at the option of
Mortgagee at any time and from time to time, to demand, receive and enforce
payment, to give receipts, releases and satisfactions and to xxx, in the name of
Mortgagor or Mortgagee, for and otherwise collect all such rents, issues and
profits and apply the same to the Secured Indebtedness; provided, however, that
Mortgagor shall have the right to collect and use such rents, issues and
profits, but not more than one (1) month in advance, prior to or at any time
there is not a Default under the Note, this Mortgage, or any of the Collateral
Loan Documents. Mortgagor acknowledges that Mortgagee shall have no obligation
to exercise any of such rights hereunder. The assignment of the rents, issues
and profits from the Premises in this Article III is intended to be a present
and absolute assignment from Mortgagor to Mortgagee and not merely the passing
of a security interest. The rents, issues and profits are hereby assigned
absolutely by Mortgagor to Mortgagee. From time to time, upon Mortgagee's
request, Mortgagor shall execute, acknowledge and deliver to Mortgagee further
assignments of leases, rents, issues and profits and deliver to Mortgagee fully
executed originals of all leases affecting the Premises.
Section 3.02. Covenants Regarding Performance of Lessor's Obligations.
Pursuant to that certain Assignment of Leases, Rents and Profits of even date
herewith, Mortgagor has assigned, and Mortgagor may hereafter assign to
Mortgagee, a certain lease or leases of all or of portions of the Premises.
Mortgagor shall perform promptly each and every covenant and agreement of any
such lease that is to be kept or performed by the lessor, and neither do nor
neglect to do, nor permit to be done, anything which may cause the termination
of such leases, or any of them, except with the prior written consent duly
issued by Mortgagee, or which may diminish or impair their value, or the rents
provided for therein or the interest of Mortgagor or Mortgagee therein.
Section 3.03. Negative Covenants Regarding Lease(s). Mortgagor will not
(i) execute any further assignment of any of its right, title or interest in the
leases or rents and profits with respect to the Premises (except to Mortgagee);
or (ii) terminate or consent to the cancellation or surrender of any lease of
the Premises or of any part thereof, now existing or hereafter to be made
without the prior written consent of Mortgagee, or (iii) modify any lease of the
Premises without the prior written consent of Mortgagee; or (iv) accept
prepayments of any installments of rent to become due under any of said leases,
except prepayments in the nature of security for the performance by a lessee of
its obligations thereunder; or (v) in any other manner impair the value of the
Premises or the security of this Mortgage; or (vi) execute any lease of all or a
substantial portion of the Premises except for actual occupancy by the lessee
thereunder; or (vii) permit any lease of the Premises or any part thereof to
become subordinate to any lien other than the lien of this Mortgage. All leases
of the Premises or any part thereof are subject to the prior approval of
Mortgagee.
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Section 3.04. Breaches Regarding Lease(s) or Assignments(s) Thereof.
Any violation on Mortgagor's part of any covenant or agreement in any such lease
or in the assignment of said lease that is to be kept or performed by Mortgagor
as lessor or as assignor, as the case may be, shall constitute a Default of this
Mortgage and thereupon Mortgagee may, at its option, without notice, declare the
entire Secured Indebtedness immediately due and payable and exercise its other
rights and remedies set out in Article IV herein.
Section 3.05. Oil, Gas or Mineral Leases. As an additional source for
the payment of the Secured Indebtedness, Mortgagor hereby assigns to Mortgagee
all of the bonus, rents, royalties, rights and benefits accruing under all oil,
gas or mineral leases affecting the Premises, or which may hereafter affect the
Premises, including all water and riparian rights, and the lessee or assignee or
sublessee is hereby directed upon production by the holder of the Secured
Indebtedness of a certified copy hereof, to pay said bonus, rents, royalties,
rights, and benefits to Mortgagee.
Section 3.06. Estoppel Certificates. Mortgagor shall make all
reasonable efforts, the reasonableness of which it shall be Mortgagor's burden
to prove, to procure and deliver to Mortgagee at any time within (30) days after
notice and demand estoppels from each lessee, in form satisfactory to Mortgagee.
Section 3.07. Future Leases. Mortgagor will advise Mortgagee promptly
of the execution hereafter of any lease of any part of the Premises and, upon
Mortgagee's written request, it will submit to Mortgagee for examination and
approval any such lease and, if Mortgagee so requests, Mortgagor will assign
such lease to Mortgagee, such assignment to be in form satisfactory to
Mortgagee; and it is further agreed that the provisions of this Mortgage with
regard to Mortgagor's obligations and Mortgagee's rights with respect to leases
and assignments of such leases shall apply to all such additional leases and
assignments thereof.
Section 3.08. Application of Rents and Other Income. All earnings,
revenues, issues, profits, income and rents collected by Mortgagor, whether
arising under any lease of the Premises, vending operations, television, movie
or telephone rentals or service charges, or otherwise with respect to the
Premises shall be applied in the following manner:
First, to the payment of all prior charges and lien assessments levied
against the Premises or any part thereof;
Second, to the payment of ground rents, if any, payable with respect to
the Premises if the Premises are a leasehold estate;
Third, (i) to the payment of reasonable compensation for Mortgagee's
legal services, Mortgagee's agents, clerks, servants and other employees engaged
or employed in respect to the Premises and (ii) any amounts due and owing to
Mortgagee under the terms of the Note and/or obligation secured hereby;
Fourth, to the payment of current operating costs and expenses
(including repairs, maintenance, renewals, replacements, alterations, security,
improvements and necessary acquisitions of property) and expenditures for
capital improvements arising in connection with the Premises;
Fifth, any amount not applied as above provided may be retained by
Mortgagor.
Section 3.09. Priority of Application. All rents collected by Mortgagee
may be applied to the items in Section 3.08, above listed, in any manner that
Mortgagee deems advisable and without regard to the aforestated priorities.
Receipt by Mortgagee of such rents, issues, and profits shall not constitute a
waiver of any right or remedy that Mortgagee may enjoy under this Mortgage or
under the laws of the state in which the Premises are located, nor shall the
receipt and application thereof cure any Default hereunder nor affect any
foreclosure proceeding or any sale authorized by this Mortgage and the laws of
the state in which the Premises are located.
Section 3.10. Accountability for Rents. Mortgagee shall be required to
account for only such rentals and payments as are actually collected by it.
Mortgagee shall have no liability for failure to rent the Premises or any part
thereof, or for failure to make collections of rentals, or for failure to do any
of the things which are authorized herein. This provision is Mortgagor's express
agreement to grant all of its rights and privileges to Mortgagee and shall not
be held to create any duties or liabilities except as herein expressly set
forth. For the purpose of accounting, the books and records of Mortgagee shall
be deemed prima facie correct.
Section 3.11. Liability for Agents. Mortgagee shall not be liable for
the act or omission of any agent and/or manager, if Mortgagee shall have used
reasonable care in the selection of such agent or manager.
Section 3.12. Liability for Premises. Mortgagee may elect to, but shall
in no event be obligated to, in the exercise of its control and management of
the Premises, be deemed the agent of Mortgagor and regardless of whether or not
Mortgagee shall make such election, it shall not be liable for any damage to any
person or property, where such damage arises out of the operation of, or in
connection with, the said Premises.
Section 3.13. Status of Lease(s)/Notice of Default. Except as set forth
in a certificate provided to Mortgagee upon execution of this Mortgage,
Mortgagor represents and warrants that any and all leases covering all or a
portion of the Premises are in full force and effect, rent has not been paid
more than one month in advance, and Mortgagor and the lessees thereof are in all
respects in good standing thereunder and that neither Mortgagor nor said lessees
are in default with respect to any provisions thereof. Mortgagor covenants and
agrees that in the event Mortgagor shall
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receive from any of the lessees of said leases notice of any default by
Mortgagor under the terms or provisions of any of said leases, or receive from
any of said lessees or from any other party any notice or communication in any
way respecting a default or alleged default or failure of performance which
could become a default after lapse of time, or otherwise, under said leases, or
relating to Mortgagor's good standing with respect thereto, Mortgagor shall
immediately, and not later than one business day after receipt of such notice or
communication, or obtaining knowledge of a default under leases of more then
10,000 square feet, real or claimed, advise or mail (overnight delivery by a
nationally recognized overnight courier in the case of a notice of default),
postage prepaid, or deliver in person to Mortgagee a true, exact and full copy
of said notice or communication.
Section 3.14. Mortgagee's Right to Perform for Mortgagor/Lessor. During
the period of an uncured Default, Mortgagor agrees that for the purpose of
curing any default under any lease of more than 10,000 square feet, Mortgagee
may, but shall not be obligated to, do any act, pay any sum or execute any
document in the name of Mortgagor or as its attorney-in-fact, as well as in
Mortgagee's own name, as Mortgagee in its discretion may determine, and
Mortgagor hereby irrevocably appoints Mortgagee its true and lawful
attorney-in-fact, in its name or otherwise, coupled with an interest, to do any
and all acts, pay any sum and/or to execute any and all documents that may in
the opinion of Mortgagee be necessary or desirable to cure any such default or
preserve any right of Mortgagor under any of said leases, or to preserve any
rights of Mortgagor whatsoever, or to protect Mortgagee's security interest. If
Mortgagee, acting under its authority herein granted, should pay, suffer or
incur any expense, costs, charge, fee, obligation, damage or liability of any
nature, or be a party to any action or proceeding, whether any of the same be
for the purpose of curing any such default or protecting Mortgagee's security or
the rights of Mortgagor under any of said leases, or otherwise, all of the same
and all sums paid by Mortgagee for prosecution or defense of such actions or
proceedings, including in any case all costs and expenses associated with court
and/or administrative proceedings through the appellate level and reasonable
attorneys' fees, shall be payable by Mortgagor to Mortgagee immediately, without
demand, together with interest thereon at the rate of 12.31% per annum (the
"Default Rate"), until paid, and the same, if not paid, shall be added to the
Secured Indebtedness and be a lien upon the Premises.
Section 3.15. Subleases Included. The term "lease" (or "leases") as
used in this Article III and throughout other articles of this Mortgage is
intended to include any sublease (or subleases).
Section 3.16. Assignment. The assignment of rents provided for in the
Mortgage, shall, notwithstanding anything to the contrary contained therein,
constitute an assignment of rents pursuant to M.C.L. Section 554.231, et. seq.
or M.C.L. Section 554.211, et. seq., whichever is applicable, and shall be
interpreted and applied in accordance therewith.
ARTICLE IV
DEFAULTS AND REMEDIES
Section 4.01. Events of Default. Time is of the essence hereof. The
term "Default," as used in this Mortgage, shall mean the occurrence of any one
or more of the following events:
(a) The failure of Mortgagor to make any payment according to the tenor
and effect of the Note, or any part thereof, or any failure to make any other
payment of the principal, interest, or premium, if any, on the Note, or any
portion of the Secured Indebtedness, including but not limited to taxes and
insurance premiums, when and as the same shall become due and payable, whether
at maturity, by acceleration, or otherwise, as in the Note, any Collateral Loan
Document, or this Mortgage provided;
(b) The filing of notice of any lien or the institution of proceedings
to enforce any other lien upon the Premises that is not dismissed, removed or
bonded to the satisfaction of Mortgagee within thirty (30) days of the date of
such filing or institution of such proceeding;
(c) The filing, at any time, of a proceeding in bankruptcy or
arrangement or reorganization with respect to Mortgagor or any guarantor or
surety of the Secured Indebtedness pursuant to the United States Bankruptcy Code
or any similar law, federal or state, including but not limited to:
(i) Mortgagor or any guarantor or surety of the Secured
Indebtedness shall file a voluntary petition in bankruptcy or shall be
adjudicated a bankrupt or insolvent, or shall file any petition or answer
seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under any
present or future federal, state, or other statute, law or regulation relating
to bankruptcy, insolvency or other relief for debtors, or shall seek or consent
to or acquiesce in the appointment of any trustee, receiver or liquidator of
Mortgagor or any such guarantor or surety or of all or any part of the Premises
or of any or all of the royalties, revenues, rents, issues or profits thereof,
or shall make any general assignment for the benefit of creditors, or shall
admit in writing its inability to pay or shall fail to pay its debts generally
as they become due;
(ii) A court of competent jurisdiction shall enter an order,
judgment or decree approving a petition filed against Mortgagor or any such
guarantor or surety of the Secured Indebtedness seeking any reorganization,
dissolution or similar relief under any present or future federal, state, or
other statute, law or regulation relating to bankruptcy, insolvency or other
relief for debtors or Mortgagor or any such guarantor or surety shall be the
subject of an order for relief entered by such a court, and such order, judgment
or decree shall remain unvacated and unstayed for an aggregate of sixty (60)
days (whether or not consecutive) from the first date of entry thereof, or any
trustee, receiver, custodian or liquidator of Mortgagor or any such guarantor or
surety or of all or any part of the Premises or of any or all of the royalties,
revenues, rents, issues or profits thereof shall be appointed without the
consent or acquiescence of Mortgagor or any such guarantor or surety and such
appointment shall remain unvacated and unstayed for an aggregate of sixty (60)
days (whether or not consecutive);
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(d) A writ of execution or attachment or any similar process shall be
issued or levied against all or any part of or interest in the Premises, and
such execution, attachment or similar process is not released, bonded,
satisfied, vacated or stayed within sixty (60) days after its entry or levy;
(e) The abandonment of any part of the Premises by Mortgagor (vacancies
of individual stores shall not constitute abandonment);
(f) If Mortgagee determines that any representation or warranty of
Mortgagor set forth in this Mortgage, the Note, or any of the Collateral Loan
Documents delivered by Mortgagor to Mortgagee in connection herewith or as
required from time to time hereby is false, misleading or erroneous in any
material respect as of the date thereof;
(g) Mortgagor's failure as lessor, or assignor, to observe, comply or
adhere to and/or perform any agreement of Mortgagor in any lease or assignment
thereof to Mortgagee relating to the Premises;
(h) The violation by Mortgagor of any covenants or agreements to be
kept or performed by Mortgagor under any ground lease affecting the Premises;
(i) Mortgagor's challenge or contest of the validity or enforceability
of the Note, this Mortgage, or any Collateral Loan Documents, or the validity,
priority or perfection of any security interest created hereunder or thereunder,
in any action, suit or proceeding;
(j) The conviction at any time of Mortgagor, or any guarantor or surety
of the Secured Indebtedness or any principal of Mortgagor under federal, state
or local law of a felony or the violation of any other criminal statute
involving fraud or misrepresentation;
(k) Any sale, conveyance, assignment, transfer, lease or any other
disposition or further encumbrance of the Premises or any part thereof without
the prior written consent of Mortgagee;
(l) The failure by Mortgagor or any other party punctually and properly
to perform such party's obligations under the Environmental Indemnity Agreements
(as defined in the Loan Agreement); or
(m) The failure of Mortgagor or any guarantor or surety of the Secured
Indebtedness to punctually and properly perform any other covenant, condition or
agreement contained in this Mortgage, the Note, or any of the Collateral Loan
Documents.
See EXHIBIT B, Additional Provisions, Section B5.
Section 4.02. Remedies. If any Default shall have occurred and be
continuing, Mortgagee shall have, in addition to any rights at law or in equity,
each and all of the following rights and remedies, which may be exercised
individually, collectively or cumulatively:
(a) Mortgagee may, at its option, without notice to Mortgagor, declare
immediately due and payable the entire debt secured by this Mortgage, and upon
any such declaration the principal of the Note, together with accrued and unpaid
interest and premium (if any), shall become and be immediately due and payable,
anything to the contrary contained in this Mortgage, the Collateral Loan
Documents, or the Note notwithstanding, and the principal debt and interest from
and after that date shall bear interest at the applicable default rate provided
in the Note.
(b) Mortgagee may, with or without bringing any action or proceeding,
and without regard to the adequacy of any security for the Secured Indebtedness,
in person or by agent or employee, or by a receiver appointed by a court of
competent jurisdiction, enter upon and take possession of all or any part of the
Premises, excluding Mortgagor and its agents and servants wholly therefrom;
Mortgagor shall on demand peaceably surrender possession thereof to Mortgagee.
Upon every such entry, Mortgagee, personally or by its agents or in the name of
Mortgagor, at the expense of Mortgagor, from time to time, may maintain and
restore the Premises, whereof it shall become possessed as aforesaid; and
likewise, from time to time, at the expense of Mortgagor, Mortgagee may make all
necessary or proper repairs, renewals and replacements and such useful
alterations, additions, betterments and improvements thereto and thereon as to
it may seem advisable or necessary to preserve the value, marketability or
rentability of the Premises; and in every such case Mortgagee shall have the
right to manage, control and operate the Premises and may make, cancel, modify
or enforce leases, obtain and evict tenants, rent and lease the same to such
persons, for such periods of time, and on such terms and conditions as Mortgagee
in its sole discretion may determine, and with or without taking possession of
the Premises, may xxx for or otherwise collect any and all of the rents, issues
and profits thereof, including those past due and unpaid and apply same, less
costs and expenses of management, operation and collection, including reasonable
attorneys' fees, upon any indebtedness secured hereby, all in such order as
Mortgagee may determine. In dealing with the Premises as a Mortgagee in, or not
in, possession, Mortgagee shall be without any liability, charge, or obligation
therefor to Mortgagor other than for willful misconduct or gross negligence, and
shall be entitled to operate any business then being conducted or which could be
conducted thereon or therewith at the expense of and for the account of
Mortgagor (and all net losses, costs and expenses thereby incurred shall be
advancements, and will be immediately due and payable and if not paid become
part of the Secured Indebtedness), to the same extent as the owner thereof could
do. The entering upon and taking possession of the Premises, the collection of
such rents, issues and profits and the application thereof as aforesaid shall
not cure or waive any Default or notice of Default under this Mortgage or
invalidate any act done in response to any such Default or pursuant to any such
notice and, notwithstanding the continuance in possession of the issues and
profits, Mortgagee
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shall be entitled to enforce every right and exercise every remedy provided for
in any of the Collateral Loan Documents or by law upon the occurrence of any
Default.
(c) In the event of the noncompliance of any duty or duties required of
Mortgagor under the terms of this Mortgage or the occurrence of any event which,
in the judgment of Mortgagee, in its sole and absolute discretion, impairs or
may impair the value of the Premises herein taken as security for the Secured
Indebtedness, Mortgagee reserves the right, at its own election, to advance
sufficient funds to accomplish said performance or maintain such security, which
sums shall also be secured hereby and shall bear interest at the Default Rate.
Said sums, upon the giving of notice by Mortgagee to Mortgagor, shall become
immediately due and payable to Mortgagee.
(d) Mortgagee, with or without entry, personally or by its agents or
attorneys, insofar as applicable may institute proceedings for the complete or
partial foreclosure of this Mortgage through judicial proceedings or by
advertisement, at the option of Mortgagee, pursuant to the statutes in such case
made and provided and, at its election, sell or cause to be sold the Premises
and all estate, right, title, interest, claim and demand therein and right of
redemption thereof, at one or more public sales, and to convey the same to the
purchaser, in accordance with said statutes, either as a whole or in separate
parcels and in such order as it may determine. Any person, including Mortgagor
or Mortgagee, may purchase at such sale. After deducting all costs, fees and
expenses of sale, including cost of evidence of title and reasonable counsel
fees (if permitted by law) in connection with sale, the proceeds of sale shall
be applied to payment of: all sums expended under the terms hereof, not then
repaid, with accrued interest at the Default Rate; all other sums then secured
hereby; and the remainder, if any, to the person or persons legally entitled
thereto.
(e) To the extent permitted by law, Mortgagee is hereby appointed the
true and lawful attorney of Mortgagor, in its name and stead or in the name of
Mortgagee, to make all necessary conveyances, assignments, transfers and
deliveries of the property rights so sold, and, for that purpose, Mortgagee may
execute all necessary deeds and instruments of assignment and transfer, and may
substitute one or more persons with like power. Mortgagor hereby ratifies and
confirms all that its said attorney or attorneys or such substitute or
substitutes shall lawfully do by virtue hereof. Mortgagor shall, nevertheless if
so requested in writing by Mortgagee, ratify and confirm any such sale or sales
by executing and delivering to Mortgagee or to such purchaser or purchasers all
such instruments as may be advisable, in the judgment of Mortgagee, for the
purposes and as may be designated in such request. Any such sale or sales made
under or by virtue of this Article IV shall operate to divest all the estate,
right, title, interest, claim and demand, whether at law or in equity, of
Mortgagor in and to the property and rights so sold, and shall be a perpetual
bar both at law and in equity against Mortgagor and its successors and assigns.
(f) Mortgagee may enforce any legal or equitable remedy against
Mortgagor and xxx for any sums whether interest, damages for failure to pay
principal or any installment thereof, taxes, installments of principal, or any
other sums required to be paid under the terms of this Mortgage, as the same
become due, without regard to whether or not the Secured Indebtedness shall be
due and without prejudice to the right of Mortgagee thereafter to enforce any
appropriate remedy against Mortgagor including an action of foreclosure, or any
other action, for a Default or Defaults by Mortgagor existing at the time such
earlier action was commenced.
(g) Mortgagee may enforce its rights, whether by action, suit or
proceeding in equity or at law for the specific performance of any covenant,
condition or agreement in the Note, this Mortgage, or the Collateral Loan
Documents contained, or in aid of the execution of any power herein granted, or
for any foreclosure hereunder, or for the enforcement of any other appropriate
legal or equitable remedy or otherwise as Mortgagee shall deem most advisable to
protect and enforce any of its rights hereunder or under the Note and the
Collateral Loan Documents. Mortgagee, at its option, shall have the power of
sale provided for by statute or otherwise permitted under the laws of the State
of Michigan.
(h) Mortgagee, at its sole option, if permitted by applicable law, may
send notifications to any and all lessees and tenants of the Premises that
future payments under or relating to the leases shall be made to Mortgagee.
Thereafter, Mortgagee shall be entitled to collect said rents and payments until
Mortgagor cures all Defaults hereunder, and shall apply such rents and payments
collected in the manner set forth in Article III hereof.
(i) Failure of Mortgagor to pay any taxes or assessments assessed
against the Premises, or any installment thereof, or any premiums payable with
respect to any insurance policy covering the Premises, shall constitute waste,
as provided by Act No. 236 of the Michigan Public Acts of 1961, as amended
(M.C.L. Section 600.2927). Mortgagor further hereby consents to the appointment
of a receiver under said statute, should Mortgagee elect to seek such relief
thereunder.
Section 4.03 Secured Party Remedies. Upon occurrence of a Default,
Mortgagee, at its sole option, may exercise any or all of the remedies available
to a secured party under the Uniform Commercial Code as adopted in the State of
Michigan (hereinafter referred to as the "UCC"), including, but not limited to:
(a) Either personally or by means of a court appointed receiver, take
possession of all or any of the Personal Property and exclude therefrom
Mortgagor and all others claiming under Mortgagor and thereafter hold, store,
use, operate, manage, maintain and control, make repairs, replacements,
alterations, additions and improvements to and exercise all rights and powers of
Mortgagor with respect to the Personal Property or any part thereof. In the
event Mortgagee demands or attempts to take possession of the Personal Property
in the exercise of any rights hereunder, under the Note, or any of the
Collateral Loan Documents, Mortgagor promises and agrees to promptly turn over
and deliver complete possession thereof to Mortgagee;
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(b) Without notice to or demand upon Mortgagor, make such payments and
do such acts as Mortgagee may deem necessary to protect its security interest in
the Personal Property, including, without limitation, paying, purchasing,
contesting or compromising any encumbrance, charge or lien which is prior to or
superior to the security interest granted hereunder, and in exercising any such
powers or authority to pay all expenses incurred in connection therewith;
(c) Require Mortgagor to assemble the Personal Property or any portion
thereof at a place designated by Mortgagee and reasonably convenient to both
parties and promptly to deliver such Personal Property to Mortgagee or an agent
or representative designated by it. Mortgagee, and its agents and
representatives, shall have the right to enter upon any or all of Mortgagor's
Premises and Property to exercise Mortgagee's rights hereunder;
(d) Sell, lease or otherwise dispose of the Personal Property at public
or private sale, with or without having the Personal Property at the place of
sale, and upon such terms and in such manner as Mortgagee may determine.
Mortgagee may be a purchaser at any such sale;
(e) Unless the Personal Property is perishable or threatens to decline
speedily in value or is of a type customarily sold on a recognized market,
Mortgagee shall give Mortgagor at least ten (10) days' prior written notice of
the time and place of any public sale of the Personal Property or other intended
disposition thereof. Such notice may be mailed to Mortgagor at the address set
forth at the beginning of this Mortgage; or
(f) Mortgagee reserves the option, pursuant to the appropriate
provisions of the UCC, to proceed with respect to the Personal Property (which,
for purposes of this paragraph, is instead referred to as the "Collateral") as
part of the Real Property in accordance with its rights and remedies with
respect to the Real Property, in which event the default provisions of the UCC
shall not apply. If Mortgagee shall elect to proceed with respect to the
Collateral separately from the Real Property, ten (10) days' notice of the sale
of the Collateral shall be deemed to be reasonable notice.
Section 4.04. Receiver. If a Default occurs and is continuing,
Mortgagee, as a matter of right and without notice to Mortgagor or anyone
claiming under Mortgagor, and without regard to the then value of the Premises
or the interest of Mortgagor therein, shall have the right to apply to any court
having jurisdiction to appoint a receiver or receivers of the Premises, and
Mortgagor hereby irrevocably consents to such appointment and waives notice of
any application therefor. Any such receiver or receivers shall have all the
usual powers and duties of receivers in like or similar cases and all the powers
of Mortgagee and shall continue as such and exercise all such powers until the
date of sale of the Premises, unless such receivership is sooner terminated.
Mortgagee or any holder of the Note may be appointed as such receiver.
Section 4.05. Retention of Possession. Notwithstanding the appointment
of any receiver, liquidator or trustee of Mortgagor, or of the Premises or any
part thereof, Mortgagee shall be entitled to retain possession and control of
all property now or hereafter granted, bargained, sold, mortgaged, warranted,
conveyed, pledged and/or assigned to or held by Mortgagee under this Mortgage.
Section 4.06. Remedies Not Exclusive. The cumulative rights of
Mortgagee arising under the clauses and covenants contained in this Mortgage
shall be separate, distinct and cumulative and none of them shall be construed
to be exclusive nor an election to proceed under any one provision herein to the
exclusion of any other provision, anything herein or otherwise to the contrary
notwithstanding. In addition to any remedies provided herein for Default hereof,
Mortgagee shall have all other remedies allowed under the laws of the State of
Michigan, and the laws of the United States. No failure on the part of Mortgagee
to exercise any of its rights hereunder arising upon any Default shall be
construed to prejudice its rights in the event of any other or subsequent
Default. No delay on the part of Mortgagee in exercising any of such rights
shall be construed to preclude it from the exercise thereof at any time during
the continuance of such Default. Mortgagee may enforce any one or more remedies
or rights hereunder in such order and manner as it may determine, successively
or concurrently at its option. By accepting payment or partial payment of any
sums secured hereby after the due date thereof, Mortgagee shall not make an
accommodation or thereby waive the agreement herein contained that time is of
the essence, nor shall Mortgagee waive either any of its remedies or options or
its right to require prompt payment when due of all sums secured or to consider
failure so to pay a Default hereunder. Neither the acceptance of this Mortgage
nor its enforcement, whether by court action or pursuant to other powers herein
contained, shall prejudice or in any manner affect Mortgagee's right to realize
upon or enforce any other security now or hereafter held by Mortgagee.
Section 4.07. Forbearance, etc. Not a Waiver. Failure to accelerate the
maturity of all or any portion of the Secured Indebtedness upon the occurrence
of any Default hereunder, or acceptance of any sum after the same is due, or
acceptance of any sum less than the amount then due, or failure to demand strict
performance by Mortgagor of the provisions of this Mortgage or any forbearance
by Mortgagee in exercising any right or remedy hereunder or otherwise afforded
by law shall not constitute a waiver by Mortgagee of any provision of this
Mortgage nor nullify the effect of any previous exercise of any such option to
accelerate or other right or remedy.
Section 4.08. Additional Amount Due After Acceleration. Upon the
occurrence of any Default and following the acceleration of maturity of the
Secured Indebtedness as herein provided, there shall be due and payable, in
addition to all other amounts due, an additional amount calculated as provided
in the Note.
ARTICLE V
SECURITY AGREEMENT
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Section 5.01. Personal Property to be Covered as Part of Real Property;
Fixtures; Mortgage to also Constitute Security Agreement as to Personal Property
Deemed Not to be Affixed to Real Property or Adapted to the Use Thereof. It is
mutually intended, agreed and declared that all Personal Property (described in
the granting clauses of this Mortgage), shall, to the full extent permitted by
law, be deemed to form a part of the Real Property and for the purposes of this
Mortgage to be considered Real Property, and as such secured by this Mortgage.
While the foregoing is intended to apply to all items of Personal Property
described in the granting clause of this Mortgage, it is particularly intended
to apply to those items of Personal Property which now are or hereafter shall
become physically affixed or adapted to the Real Property (which for purposes
hereof are commonly referred to as "fixtures"). If any such Personal Property
shall for any reason be deemed not to be affixed or adapted to the Real
Property, and/or if a separate fixture filing is necessary or appropriate
regarding same, then this Mortgage shall constitute a Security Agreement with
respect to any and all such Personal Property, to be perfected by filing
financing statement(s) in the appropriate records of the county in which the
Premises are located and with the office of the Secretary of State of the State
of Michigan.
Section 5.02. Creation of Security Interest. As to any of the Personal
Property which cannot qualify as part of the Real Property pursuant to the
provisions of Section 5.01, this Mortgage is hereby deemed to be, and is, as
well, a Security Agreement under the UCC for the purpose of creating hereby a
security interest in such Personal Property; and Mortgagor hereby grants to
Mortgagee as Secured Party (as defined in the UCC) a security interest in (a)
all the Personal Property located on or at the Premises and more fully described
in the granting clauses of this Mortgage, including without limitation any and
all property of similar type or kind hereafter located on or at the Premises,
(b) any and all sums at any time on deposit for the benefit of Mortgagee or held
by Mortgagee (whether deposited by or on behalf of Mortgagor or anyone else)
pursuant to any of the provisions of this Mortgage, and (c) all other property
(tangible and intangible) arising from or relating to the Premises, all for the
purpose of securing all obligations of Mortgagor herein contained. Mortgagor
shall, from time to time, upon request of Mortgagee, deliver to Mortgagee a
current inventory of the Personal Property in reasonable detail.
Section 5.03. Warranties, Representations and Covenants. Mortgagor
hereby warrants, represents and covenants as follows:
(a) Except for the security interest granted hereby, liens created to
secure payment of the purchase price for tangible fixed assets used by the
Mortgagor in the ordinary course of its business, and the interest or title of
lessors under any equipment lease entered into by Mortgagor in the ordinary
course of its business, Mortgagor is, and as to portions of the Personal
Property to be acquired after the date hereof will be, the sole owner of the
Personal Property, free from any adverse lien, security interest, encumbrance or
adverse claims thereon of any kind whatsoever. Mortgagor will notify Mortgagee
of, and will defend the Personal Property against, all claims and demands of all
persons at any time claiming the same or any interest therein.
(b) Mortgagor will not lease, sell, convey or in any manner transfer
the Personal Property without the prior written consent of Mortgagee.
(c) The Personal Property is not used or bought for Mortgagor's
personal, family or household purposes.
(d) The Personal Property will be kept on or at the Premises and
Mortgagor will not remove the Personal Property from the Premises without the
prior written consent of Mortgagee, except that so long as Mortgagor is not in
Default hereunder, Mortgagor shall be permitted to dispose of such portions or
items of Personal Property which are consumed or worn out in ordinary usage, all
of which shall be promptly replaced by Mortgagor with property of like kind and
quality and at least equal in value to that replaced and in such manner so that
said new Personal Property shall be subject to the security interest created
hereby and so that the security interest of Mortgagee shall be first in
priority, it being expressly understood that all replacements of the Personal
Property and any additions to the Personal Property shall be and become
immediately subject to the security interest of this Mortgage and be covered
hereby.
(e) At the request of Mortgagee, Mortgagor will join Mortgagee in
executing one or more financing statements and renewals and amendments thereof
as well as any continuation statements pursuant to the UCC in form satisfactory
to Mortgagee, and will pay the cost of filing the same in all public offices
wherever filing is deemed by Mortgagee to be necessary or desirable to perfect
the security interest created by this Mortgage. Mortgagor authorizes Mortgagee
to file financing and continuation statements, and amendments and supplements
thereto relating to the equipment, fixtures and Personal Property signed only by
Mortgagee.
(f) Mortgagor will do all acts and things as Mortgagee may require or
as may be necessary or appropriate to establish and maintain a first perfected
security interest in the Personal Property, subject to no liens, encumbrances or
security interests of others.
(g) All covenants and obligations of Mortgagor contained in this
Mortgage shall be deemed to apply to the Personal Property whether or not
expressly referred to herein.
(h) This Mortgage constitutes a Security Agreement for all purposes
under the UCC.
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ARTICLE VI
MISCELLANEOUS
Section 6.01. Certain Additional Powers of Mortgagee; Sale No Effect on
Liability. Without affecting the liability of any other person liable for the
payment or performance of any obligation secured hereby and without affecting
the lien or charge of this Mortgage upon any portion of the Premises not then or
theretofore released as security for all unpaid or unperformed obligations
secured hereby, Mortgagee may from time to time and without notice (a) release
any person so liable, (b) extend the maturity or alter any of the terms of any
such obligation, (c) grant other indulgences, (d) release or reconvey, or cause
to be released or reconveyed any parcel, portion or all of the Premises, (e)
take or release any other or additional security for any such obligations, or
(f) make compositions or other arrangements with debtors in relation thereto. No
sale of the Premises shall in anywise affect the liability of any party to the
Note, or any person liable or to become liable with respect to the Secured
Indebtedness.
Section 6.02. Mortgagor's Duty to Defend and Pay Expenses. Mortgagor at
its sole expense, will appear in and affirmatively defend all actions or
proceedings purporting to affect the security hereof or any right or power of
Mortgagee hereunder. Mortgagor shall save Mortgagee harmless from all costs and
expenses, including but not limited to all costs and expenses associated with
court and/or administrative proceedings through the appellate level, reasonable
attorneys' fees, costs of title search, continuation of abstract(s) and
preparation of survey incurred by reason of any action, suit, proceeding,
hearing, motion or application before any court or administrative body in which
Mortgagee may be or become a party by reason of the Note, this Mortgage, or any
Collateral Loan Document, including but not limited to condemnation, bankruptcy,
and administrative proceedings, as well as any other of the foregoing where a
proof of claim is by law required to be filed, or in which it becomes necessary
to defend or uphold the terms or lien of this Mortgage. Mortgagee, in its sole
discretion, may appear in and defend any such action or proceeding, and
Mortgagee is authorized to pay, purchase or compromise on behalf of Mortgagor
any encumbrance or claim which in its judgment appears to or purports to affect
the security hereof or to be superior hereto. Mortgagor will pay on demand all
sums so expended and all costs and expenses, including reasonable attorneys'
fees, incurred in any such action by Mortgagee, with interest thereon from the
date of expenditure at the Default Rate. In any suit to foreclose the lien
hereof, there shall be allowed and included as additional indebtedness in the
decree for sale all expenditures and expenses which may be (including but not
limited to reasonable attorneys' fee for Mortgagee's counsel) paid or incurred
by or on behalf of Mortgagee for costs and expenses associated with court and/or
administrative proceedings through the appellate level, reasonable attorneys'
fees, appraisers' fees, costs of environmental assessments and studies, outlays
for documentary and expert evidence, stenographers' charges, publication costs
and costs (which may be estimated as to items to be expended after entry of the
decree) of procuring all such abstracts of title, title searches and
examinations, title insurance policies, and similar data and assurances with
respect to the title as Mortgagee may deem reasonably necessary either to
prosecute such suit or to evidence to bidders at any sale which may be had
pursuant to such decree the true condition of the title to or the value of the
Premises. Mortgagor shall also pay all expenses incurred by Mortgagee on matters
arising after the date hereof where Mortgagor (or other parties with the consent
of Mortgagor) seek accommodation from Mortgagee, including but not limited to
extensions, partial releases or consents to sales, secondary financing, tenant
substitutions, etc. The foregoing shall not in any way be deemed to obligate
Mortgagee to make any requested accommodation. All expenditures and expenses of
the nature in this paragraph mentioned and collection efforts regarding payments
owing under this Mortgage, the Note, or the Collateral Loan Documents as well as
recordkeeping costs resulting therefrom and such expenses and fees as may be
incurred in the protection of said Premises and the maintenance of the lien of
this Mortgage, including the reasonable fees of any attorneys employed by
Mortgagee in any pending or threatened litigation or proceeding affecting this
Mortgage, the Note, any of the Collateral Loan Documents, or the Premises,
including appellate, probate and bankruptcy proceedings, or in preparation for
the commencement or defense of any proceeding or threatened suit or proceeding
shall be immediately due and payable by Mortgagor. All sums expended or costs
incurred by Mortgagee referred to in this section, if not repaid on demand,
shall with interest at the Default Rate be deemed a part of the Secured
Indebtedness.
Section 6.03. Documentary or Internal Revenue Stamps. If at any time
the State of Michigan shall determine that the documentary stamps affixed to the
Note are insufficient or if no documentary stamps have been affixed for lawful
reasons, that such stamps should thereafter be affixed, Mortgagor shall pay for
the same, together with any interest or penalties imposed in connection with
such determination and the amount of money needed to pay for such stamps and
penalties shall, until such stamps are purchased and affixed, be a portion of
the Secured Indebtedness. The same provisions and obligations shall apply with
respect to any Internal Revenue Stamps or similar stamps that may be required at
any time regarding this Mortgage, the Note, or any Collateral Loan Documents.
Section 6.04. Tax on Mortgage. In the event of the passage of any
state, federal, municipal or other governmental law, order, rule or regulation
(prior to or subsequent to the date hereof), in any manner changing or modifying
the laws now in force governing the taxation of mortgages or debts secured by
mortgages or the manner of collecting taxes so as to affect adversely Mortgagee,
the entire balance of the Secured Indebtedness shall without notice become due
and payable forthwith at the option of Mortgagee, without prepayment premium.
Notwithstanding the foregoing language of this paragraph, if Mortgagor is
permitted by law to pay any such tax or imposition (and provided such payment
will not make the Loan usurious), then and so long as Mortgagor does in fact pay
and continue to pay same to Mortgagee's satisfaction and prior to any penalty
accruing, Mortgagee agrees not to exercise its option under this Section 6.04 to
accelerate the Secured Indebtedness. Notwithstanding the foregoing, it is
understood and agreed that Mortgagor is not obligated to pay any portion of
Mortgagee's federal or state income taxes.
Section 6.05. Filing and Recording Fees. Mortgagor will pay all filing,
registration or recording fees, and all expenses incident to the execution and
acknowledgment of this Mortgage and all federal, state, county, and
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municipal taxes, and other taxes, duties, imposts, assessments and charges
arising out of or in connection with the execution and delivery of the Note,
this Mortgage, and the Collateral Loan Documents.
Section 6.06. Notices. Whenever Mortgagee or Mortgagor desires to give
or serve any notice, demand, request or other communication with respect to this
Mortgage, each such notice, demand, request or other communication shall be in
writing and shall be effective only if the same is (1) delivered by personal
service, (2) mailed by certified mail, postage prepaid, return receipt
requested, or (3) delivered by nationwide overnight delivery service (with
charges prepaid). For the purposes hereof, the date a notice shall be deemed to
be given shall be (a) the date of delivery if given by personal service, (b) the
date of mailing if given by certified mail, the delivery of which shall be
deemed to have occurred on the day such mailing is received or receipt refused,
and (c) the date of delivery if given by overnight delivery service. All notices
must be addressed to the address set forth at the beginning of this Mortgage.
Any party may at any time change its address for such notices by delivering or
mailing to the other parties hereto, as aforesaid, a notice of such change.
However, nothing in this Section 6.06 shall be construed as requiring Mortgagee
to give any notice of Default or notice of intent to accelerate.
Section 6.07. Waiver of Rights by Mortgagor. To the extent permitted by
applicable law, Mortgagor waives the benefit of all laws now existing or that
hereafter may be enacted providing for (a) any appraisement before sale of any
portion of the Premises, or (b) extension of the time for the enforcement or
collection of the Note or the indebtedness evidenced thereby, or (c) creation of
an extension of the period of redemption from or a moratorium on any sale made
pursuant to this Mortgage. 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, extension, redemption or moratorium, and
Mortgagor, for Mortgagor, Mortgagor's successors and assigns, and for any and
all persons ever claiming any interest in the Premises, to the extent permitted
by law, hereby waives and releases all rights of redemption, both statutory
rights of redemption and equity of redemption, valuation, appraisement,
moratorium, stay of execution, notice of election to mature or declare due the
whole of the Secured Indebtedness and marshaling in the event of foreclosure of
the liens hereby created. If any law referred to in this Section 6.07 and now in
force, of which Mortgagor, Mortgagor's successors and assigns or other person
might take advantage despite this Section 6.07, shall hereafter be repealed or
cease to be in force, such law shall not thereafter be deemed to preclude the
application of this Section 6.07. Mortgagor expressly waives and relinquishes
any and all rights and remedies which Mortgagor may have or be able to assert by
reason of the laws pertaining to the rights and remedies of sureties. Mortgagor
waives, to the full extent permitted by law, all statutes of limitations as a
defense to this Mortgage and any obligation secured by this Mortgage. Mortgagor
expressly agrees that pursuant to Mortgagee's power of sale found in Section
4.02 hereof, Mortgagee may elect to sell the Property hereby mortgaged and
appurtenances thereto at public sale en masse, in separate parcels, or in any
combination of parcels, as Mortgagee shall determine in its sole discretion.
Mortgagor hereby acknowledges that it possesses extensive holdings in real
estate, is a sophisticated investor in and developer of the same, and after
consulting with counsel on the matter, does hereby knowingly and voluntarily
waive any right it may have under law to require sale by separate parcels,
including without limitation the provisions of MCL Section 600.3165 and/or
Section 600.3224, or to redeem one (or any combination of the parcels less than
all), notwithstanding a sale en masse.
Section 6.08. Joint and Several Liability. If Mortgagor consists of
more than one party, such Mortgagors shall be jointly and severally liable under
any and all obligations, covenants and agreements of Mortgagor contained herein.
Section 6.09. Severability. In case any one or more of the covenants,
agreements, terms or provisions contained herein, in the Note, or in any of the
Collateral Loan Documents, shall be invalid, illegal or unenforceable in any
respect, the validity of the remaining covenants, agreements, terms or
provisions shall in no way be affected, prejudiced or disturbed thereby, and to
this end the provisions of the loan documents are declared to be severable.
Section 6.10. Covenants "To Run With Land"; Successors and Assigns.
This Mortgage and all the terms, covenants, conditions, agreements and
requirements hereof, whether stated herein at length or incorporated herein by
reference, shall be covenants running with the land so long as this Mortgage is
in effect and shall be binding upon and inure to the benefit of the heirs,
executors, administrators, successors and assigns of Mortgagor and Mortgagee.
Section 6.11. Definitions. Wherever used in this Mortgage, unless the
context clearly indicates a contrary intent or unless otherwise specifically
provided herein, the word "Mortgagor," shall mean "Mortgagor and/or any
subsequent owner or owners of the Premises," the word "Mortgagee" shall mean
"Mortgagee or any subsequent holder or holders of this Mortgage," the word
"Note" shall mean "note of even date herewith secured by this Mortgage and any
additional note or notes at any time secured by this Mortgage," the word
"person" shall mean "an individual, corporation, partnership or unincorporated
association," and pronouns of any gender shall include the other genders, and
either the singular or plural shall include the other.
Section 6.12. Governing Law. This Mortgage has been executed and
delivered in the State of Michigan and is to be construed and enforced according
to and governed by the laws of the State of Michigan. Any provision of this
Mortgage which provides, in substance, that any advance, expense or other
payment by Mortgagor shall bear interest at the maximum rate permitted by
applicable law shall be deemed to mean the Default Rate.
Section 6.13. Modification Procedure. This Mortgage, the Note, and the
Collateral Loan Documents cannot be modified except by an instrument in writing
executed by both Mortgagor and Mortgagee. No requirement of this Mortgage, the
Note, or any Collateral Loan Document can be waived at any time except by a
writing signed by Mortgagee, nor shall any waiver be deemed a waiver of any
subsequent breach or Default of Mortgagor.
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Section 6.14. Captions. The headings or captions of the Articles,
sections, paragraphs, and subdivisions of this Mortgage are for convenience or
reference only, are not to be construed a part hereof, and shall not limit or
otherwise affect any of the terms hereof.
Section 6.15. Future Advance Mortgage. This Mortgage secures future
advances and is a future advance mortgage under Act No. 348 of the Michigan
Public Acts of 1990 (MCL 565.901 et seq.). All future advances under the Note,
this Mortgage, and the Collateral Loan Documents shall have the same priority as
if the future advance was made on the date that this Mortgage was recorded.
SECTION 6.16. JURISDICTION. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
MORTGAGOR HEREBY IRREVOCABLY SUBMITS TO PERSONAL JURISDICTION IN THE STATE OF
MICHIGAN AND OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
MICHIGAN FOR THE ENFORCEMENT OF MORTGAGOR'S OBLIGATIONS HEREUNDER, UNDER THE
NOTE, AND UNDER THE COLLATERAL LOAN DOCUMENTS, AND WAIVES ANY AND ALL PERSONAL
RIGHTS UNDER THE LAW OF ANY OTHER STATE TO OBJECT TO JURISDICTION WITHIN
MICHIGAN FOR THE PURPOSES OF LITIGATION TO ENFORCE SUCH OBLIGATIONS.
FURTHERMORE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, MORTGAGOR HEREBY WAIVES
PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT OR OTHER PROCESS OF THE PAPERS
ISSUED IN CONNECTION WITH SUCH LITIGATION AND AGREES THAT SERVICE MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE MORTGAGOR AT THE ADDRESS SET FORTH
HEREIN.
SECTION 6.17. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, MORTGAGOR HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY
IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE, IN ANY COURT IN WHICH AN
ACTION MAY BE COMMENCED, ARISING OUT OF OR IN CONNECTION WITH THE NOTE, THIS
MORTGAGE, ANY COLLATERAL LOAN DOCUMENT, OR ANY OTHER MATTERS RELATED THERETO.
Section 6.18. Additional Provisions. The terms, covenants and
provisions of this Mortgage are subject, in all respects, to the additional
provisions, if any, set forth on Exhibit B, attached hereto and incorporated
herein by reference.
NOW, THEREFORE, if Mortgagor shall well and truly pay the indebtedness
evidenced by the Note, or any extensions or renewals thereof, and the interest
thereon to Mortgagee, its successors or assigns, and if Mortgagor shall well and
truly perform and keep the several covenants, conditions and agreements herein
set forth, then this Mortgage shall be void and shall be released as provided by
law, and if permitted by applicable law, at the expense of Mortgagor; otherwise,
the same shall remain in full force and effect.
15
19
IN WITNESS WHEREOF, the undersigned has caused this Instrument to be
executed and delivered under seal as of the day and year first above written.
Signed in the presence of: RAMCO-XXXXXXXXXX PROPERTIES, L.P.,
a Delaware limited partnership
By: RAMCO-XXXXXXXXXX PROPERTIES
TRUST, a Maryland real estate
investment trust, its general
partner
By:
------------------------------------- -----------------------------------
Printed Name:
------------------------
Its:
----------------------------------
-------------------------------------
Printed Name:
-----------------------
(SEAL)
ACKNOWLEDGMENT
STATE OF MICHIGAN )
) SS:
COUNTY OF )
The foregoing instrument was acknowledged before me this
day of , 2000 by the
of Ramco-Xxxxxxxxxx Properties Trust, a Maryland real
estate investment trust, the general partner of Ramco-Xxxxxxxxxx Properties,
L.P., a Delaware limited partnership, on behalf of the partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal, the
day and year first above written.
----------------------------------------------
Notary Public
Printed Name:
--------------------------------
County,
---------------------- ----------------
My commission expires:
------------------------
This instrument prepared by and after recording return to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxx Xxxx PLC
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
16
20
EXHIBIT A-1
Legal Description
A-1
21
EXHIBIT A-2
Legal Description
A-2
22
EXHIBIT A-3
Legal Description
A-3
23
EXHIBIT A-4
Legal Description
A-4
24
EXHIBIT A-5
Legal Description
A-5
25
EXHIBIT A-6
Legal Description
A-6
26
EXHIBIT A-7
Legal Description
A-7
27
EXHIBIT A-8
Legal Description
A-8
28
EXHIBIT A-9
Legal Description
A-9
29
EXHIBIT A-10
Legal Description
A-10
30
EXHIBIT A-11
Legal Description
A-11
31
EXHIBIT B
Additional Provisions
The following shall be included in the Mortgage, and to the extent that
there is any inconsistency between the text of the Mortgage and the language
hereof, the provisions set forth in this Exhibit shall control:
Section B1. No Personal Liability On Debt. Notwithstanding any
provision in this Mortgage to the contrary, the terms and conditions of the
exculpation provision set forth in Section A1 of Exhibit A to the Note are
incorporated herein by reference and shall supersede any inconsistent provision
herein, in the Note, or in any of the Collateral Loan Documents.
Section B2. Permitted Transfers. The following shall be inserted at the
end of Section 2.03(a):
Notwithstanding the foregoing, Mortgagee agrees that Mortgagor shall,
with respect to each Tract, have the one (1) time right to Transfer such Tract
with the prior written consent of Mortgagee, which consent may be given or
withheld in Mortgagee's sole discretion without prepayment fee except as set
forth in this Section B2. It is expressly acknowledged and agreed by Mortgagor
that, among other things, Mortgagee may condition any consent to a Transfer upon
(a) satisfaction of subsections (i) through (v) of the second paragraph of this
Section 2.03(a); and (b) reduction of the principal balance then outstanding
under the Note in an amount not more than fifty percent (50%) of the greater of
(i) the purchase price received by Mortgagor for such Transfer, if any; or (ii)
the value assigned to the Tract by Mortgagee on the date of closing less an
allocable share of the principal amoritzation paid on the Secured Indebtedness.
If the entire Premises are sold after Mortgagee has approved
the purchaser thereof pursuant to Section 2.03(a) and the purchaser has assumed
all obligations of Mortgagor under the Note, this Mortgage, and the Collateral
Loan Documents (including, without limitation, the liability for obligations set
forth in Section A1 of EXHIBIT A to the Note), then Mortgagor and Guarantor
shall be released from all future liability thereunder except for matters that
occurred or were in existence during the time Mortgagor owned the Premises.
Section B3. Substitution. The following shall be inserted at the end of
Section 2.03(a):
Mortgagor shall have the right to replace any Tract (other
than the Tract consisting in part of the land described in Exhibit A-1 attached
hereto) with an alternate property (the "Substitute Collateral"). Such
substitution will be permitted providing that (i) no Default or event that with
the giving of notice or passage of time would become a Default has occurred; and
(ii) the Substitute Collateral has value, as determined by the Mortgagee in its
sole discretion, that is equal or superior to such Tract. There will not be a
charge for such substitution except for the cost of Mortgagee's review thereof,
plus a $1,000.00 processing fee and Mortgagee's out of pocket costs.
Section B4. Leases in the Normal Course of Business. Notwithstanding
anything to the contrary contained in Article II and/or III of this Mortgage or
in any of the Collateral Loan Documents, so long as Mortgagor is not in Default,
Mortgagor shall have the right to enter into new leases OF LESS THAN 5,000
SQUARE FEET, terminate, modify and otherwise deal with leases OF LESS THAN 5,000
SQUARE FEET and the tenants under said leases in its normal course of business
without obtaining Mortgagee's prior written approval of any such action;
provided leases over 5,000 square feet shall be subject to Mortgagee's consent,
not to be unreasonably withheld, and such consent will be deemed granted if a
Mortgagee does not object to a proposed lease or a TERMINATION OR MODIFICATION
OF AN EXISTING LEASE within ten (10) business days following submission to
Mortgagee of an execution copy of such lease or amendment or a detailed written
description of such proposed termination.
Section B5. Event of Default. The following shall be inserted at the
end of Section 4.01:
(n) If without the consent of Mortgagee (which consent in any and all
circumstances may be withheld in the sole and absolute discretion of Mortgagee)
(A) any of (i) Xxxxxx Xxxxxxxxxx; (ii) Xxxx Xxxxxxxxxx; (iii) Xxxxx Xxxxxxxxxx;
(iv) Xxxxxxx Xxxxxxxxxx; and (v) Xxxxxxx Xxxx, as Trustee U/T/A dated February
22, 1977, as amended (hereinafter, the "Principals"), shall sell, transfer or
convey any of his beneficial interest in the Mortgagor at any time prior to May
1, 1999, or (B) at any time thereafter, less than 5% of the ownership interest
in the Mortgagor shall be owned either directly or indirectly in partnerships in
which the Principals possess a controlling interest, on an unencumbered basis,
by any of or on an aggregate basis, any combination of the Principals. Nothing
contained herein shall be construed to prohibit the pledge or assignment of
Principals' beneficial interests in the Mortgagor prior to May 1, 1999.
A transfer of ownership in Mortgagor to the respective
spouses, children or grandchildren of the Principals, whether by sale,
assignment, alienation, devise, or transfer into trust for the benefit of such
Principal's respective spouse, children or grandchildren, shall not be deemed a
sale, transfer, or conveyance hereunder.
(o) The occurrence of a "Default", as that term is defined in any of
the Loan Agreements.
(p) The occurrence of a "Default", as that term is defined in the West
Oaks Mortgage.
B-1
32
Provided that in the case of the occurrence of any failure,
event or condition described in subparagraph (b) - (n) of this Section 4.01
which does not also constitute a monetary Default (any such failure, event or
condition being herein called a "Non-Monetary Default"), a Default shall not be
deemed to have occurred unless the Non-Monetary Default in question shall
continue after the expiration of thirty (30) days after the date on which
Mortgagee shall have given written notice of the Non-Monetary Default to
Mortgagor.
If such Non-Monetary Default cannot by its nature be fully
cured within said thirty (30) day period, Mortgagor shall have a reasonable
additional period to cure same provided (1) Mortgagor continuously prosecutes
the curing action with diligence, and (2) the granting of such additional curing
period does not, in Mortgagee's opinion, jeopardize its vital interests;
provided that Mortgagor shall be entitled to such additional period for
Non-Monetary Defaults no more than twice in any twelve (12) month period, with
respect to any one Tract (as defined below) or if such Non-Monetary Default does
not relate to a specific Tract, no more than twice in any twelve (12) month
period.
The period Mortgagor is permitted to cure any Non-Monetary
Default, as set forth in this Section B5 shall not be more than (nor shall it be
considered to be in addition to) any other period to cure any breach or Default
as may be provided in this Mortgage, the Note, or the Collateral Loan Documents.
SECTION B6. PARTIAL RELEASES. (I) COMMENCING ON FEBRUARY 10, 2001,
TRACTS (OTHER THAN THE PORTION OF THE PREMISES PERTAINING TO THE PARCEL
DESCRIBED IN EXHIBIT A-1 ATTACHED HERETO (THE "XXXXXXX WEST TRACT")) (A "LOAN
NO.157670 TRACT") MAY BE RELEASED FROM THE LIEN HEREOF (SO LONG AS NO DEFAULT OR
DEFAULT CONDITION HAS OCCURRED) UPON PREPAYMENT OF THE SHARE OF THE PRINCIPAL
AND ACCRUED INTEREST UNDER THE LOAN NO. 157670 NOTES ALLOCABLE TO THE TRACT IN
QUESTION. SUCH PREPAYMENT SHALL CONSIST OF THE FOLLOWING: (A) PAYMENT OF THE
PRINCIPAL, INTEREST AND ANY OTHER SUMS ALLOCABLE TO SUCH TRACT; PLUS (B) ANY AND
ALL PREPAYMENT PREMIUMS DUE ON THE PRINCIPAL BEING REPAID, CALCULATED AS
PROVIDED IN THE LOAN NO. 157670 NOTES; PLUS AT MORTGAGEE'S OPTION, (C) AN
ADDITIONAL SUM EQUAL TO TWENTY-FIVE PERCENT (25%) OF THE PRINCIPAL BEING REPAID.
THE PRINCIPAL ALLOCABLE TO SUCH TRACT UNDER (A) ABOVE SHALL BE, AT THE
MORTGAGEE'S SOLE DISCRETION, EQUAL TO 55% OF THE GREATER OF (I) THE SALES PRICE
OF THE TRACT RELEASED HEREUNDER, OR (II) THE VALUE ASSIGNED TO THE TRACT BY
MORTGAGEE AS OF THE DATE HEREOF, LESS A PROPORTIONAL SHARE OF THE PRINCIPAL PAID
BY THE MORTGAGOR UP TO THE DATE OF THE TRANSFER. THE ADDITIONAL SUM DESCRIBED IN
(C) HEREUNDER SHALL BE APPLIED AT PAR BY MORTGAGEE TO REDUCE THE OUTSTANDING
PRINCIPAL BALANCE OF THE LOAN NO. 157670 NOTES, AND MORTGAGEE MAY ALLOCATE SUCH
PRINCIPAL REDUCTION AMONGST THE VARIOUS REMAINING LOAN NO. 157670 TRACTS IN
MORTGAGEE'S SOLE DISCRETION. NO PREPAYMENT PREMIUM SHALL BE PAYABLE WITH RESPECT
TO ANY SUCH ADDITIONAL AMOUNTS DESCRIBED UNDER ITEM (C). IN THE EVENT THE
AGGREGATE PRINCIPAL AMOUNT OF THE LOAN NO. 157670 NOTES EXCEEDS THE AGGREGATE OF
THE PRINCIPAL PAYMENT ONLY MADE PURSUANT TO ITEM (A) ABOVE AND THE ADDITIONAL
PAYMENT, IF ANY, MADE PURSUANT TO ITEM (C) FOR THE RELEASE OF SUCH TRACT, THE
AGGREGATE OF THE PRINCIPAL PAYMENT ONLY MADE PURSUANT TO ITEM (A) ABOVE AND THE
ADDITIONAL PAYMENT, IF ANY, MADE PURSUANT TO ITEM (C) ABOVE FOR THE RELEASE OF
SUCH TRACT SHALL BE APPLIED PROPORTIONATELY TO THE OUTSTANDING PRINCIPAL BALANCE
OF THE LOAN NO. 157670 NOTES BASED UPON THE RATIO OF THE OUTSTANDING PRINCIPAL
BALANCE OF A LOAN NO. 157670 NOTE TO THE AGGREGATE OUTSTANDING PRINCIPAL BALANCE
OF ALL LOAN NO. 157670 NOTES. IN THE EVENT THE AGGREGATE OF THE PRINCIPAL
PAYMENT ONLY MADE PURSUANT TO ITEM (A) ABOVE AND THE ADDITIONAL PAYMENT, IF ANY,
MADE PURSUANT TO ITEM (C) ABOVE FOR THE RELEASE OF A LOAN NO. 157670 TRACT
EXCEEDS THE AGGREGATE OUTSTANDING PRINCIPAL BALANCE OF ALL LOAN NO. 157670
NOTES, MORTGAGEE MAY, IN ITS SOLE DISCRETION, APPLY SUCH EXCESS, IN SUCH
AMOUNTS, TO THE PRINCIPAL BALANCE OF SUCH OF THE OTHER LOAN NO. 157774 NOTES
AND/OR LOAN NO. 158186 NOTES AS IT ELECTS.
(II) COMMENCING ON FEBRUARY 10, 0000, XXX XXXXXXX XXXX XXXXX MAY BE
RELEASED FROM THE LIEN HEREOF (SO LONG AS NO DEFAULT OR DEFAULT CONDITION HAS
OCCURRED) UPON PREPAYMENT OF ALL OF THE PRINCIPAL AND ACCRUED INTEREST UNDER THE
LOAN NO. 158186 NOTES. SUCH PREPAYMENT SHALL CONSIST OF THE FOLLOWING: (A)
PAYMENT OF ALL PRINCIPAL AND ACCRUED INTEREST UNDER THE LOAN NO. 158186 NOTES;
PLUS (B) ANY AND ALL PREPAYMENT PREMIUMS DUE ON THE PRINCIPAL BEING REPAID,
CALCULATED AS PROVIDED IN THE LOAN NO. 158186 NOTES; PLUS, AT MORTGAGEE'S
OPTION, (C) AN ADDITIONAL SUM EQUAL TO TWENTY-FIVE PERCENT (25%) OF THE
PRINCIPAL BEING REPAID. THE ADDITIONAL SUM DESCRIBED IN (C) HEREUNDER SHALL BE
APPLIED AT PAR BY MORTGAGEE TO REDUCE THE OUTSTANDING PRINCIPAL BALANCE OF THE
LOAN NO. 157670 NOTES AND MORTGAGEE MAY ALLOCATE SUCH PRINCIPAL REDUCTION AMONG
THE VARIOUS LOAN NO. 157670 TRACTS, IN MORTGAGEE'S SOLE DISCRETION. NO PAYMENT
PREMIUM SHALL BE PAYABLE WITH RESPECT TO ANY SUCH ADDITIONAL AMOUNT DESCRIBED
UNDER (C). IN THE EVENT THE AGGREGATE PRINCIPAL AMOUNT OF THE LOAN NO. 157670
NOTES EXCEEDS THE AMOUNT PAID PURSUANT TO ITEM (C) ABOVE FOR THE RELEASE OF THE
XXXXXXX WEST TRACT, SUCH AMOUNT SHALL BE APPLIED PROPORTIONATELY TO THE
OUTSTANDING PRINCIPAL BALANCE OF THE LOAN NO. 157670
B-2
33
NOTES BASED ON THE RATIO OF THE OUTSTANDING PRINCIPAL BALANCE OF A LOAN NO.
157670 NOTE TO THE AGGREGATE OUTSTANDING PRINCIPAL BALANCE OF ALL LOAN NO.
157670 NOTES.
(III) IN THE EVENT OF A PREPAYMENT OF THE NOTE WITH RESPECT TO A
RELEASE PURSUANT TO THIS SECTION B-6, MORTGAGEE MAY, AT ITS OPTION, REVOKE THE
TAX AND INSURANCE ESCROW WAIVER LETTER OF EVEN DATE HEREWITH EXECUTED BY
MORTGAGEE FOR THE BENEFIT OF MORTGAGOR (THE "WAIVER LETTER"); PROVIDED, HOWEVER,
IF MORTGAGEE ELECTS TO RECEIVE THE ADDITIONAL AMOUNT DESCRIBED UNDER ITEM (C)
ABOVE IN CONNECTION WITH SUCH RELEASE, THEN MORTGAGEE AGREES NOT TO REVOKE THE
WAIVER LETTER.
Section B7. Covenants Pertaining to Ground Lease. Mortgagor
hereby agrees that, with respect to the Ground Lease and the leasehold estate of
Mortgagor thereunder:
1. Mortgagor represents and warrants that the Ground Lease is in
full force and effect, that there is no default thereunder nor
any event which with the passage of time or the giving of
notice would be deemed a default.
2. Mortgagor shall promptly (1) pay all rent reserved in the
Ground Lease as and when such rent becomes due and payable
(without relying on any grace period provided therein); (2)
perform and observe all of the agreements, covenants and
conditions required to be performed and observed by Mortgagor
under the Ground Lease as and when performance and observance
are due (without relying on any grace period provided therein)
and do all things necessary to preserve and keep unimpaired
the rights of Mortgagor under the Ground Lease; (3) notify
Mortgagee in writing of any default by Mortgagor in the
performance or observance of any of the agreements, covenants
or conditions of the Ground Lease, or of the occurrence of any
event that, regardless of the lapse of time, or notice, or
both, would constitute a default under the Ground Lease; and
(4) notify Mortgagee in writing of the giving of any notice by
the lessor under the Ground Lease of a default by Mortgagor
thereunder and send a copy of each such notice to Mortgagee.
3. If Mortgagor fails to perform or observe any of the
agreements, covenants, or conditions required to be performed
or observed by Mortgagor under the Ground Lease promptly when
due, and without regard to any notice or period of grace
provided by the Ground Lease, Mortgagee shall have the right,
but no obligation, and without notice to or demand upon
Mortgagor and without releasing Mortgagor from any obligations
hereunder, to take any action that Mortgagee deems necessary
or desirable to prevent or to cure any such default by
Mortgagor. Upon receipt by Mortgagee from the lessor under the
Ground Lease of written notice of default by Mortgagor
thereunder, Mortgagee shall have the right to rely thereon and
to take any action Mortgagee deems necessary or desirable to
prevent or to cure such default even though the existence of
such default or the nature thereof is questioned or denied by
Mortgagor or any party on behalf of Mortgagor. Mortgagor
expressly grants to Mortgagee, and agrees that Mortgagee shall
have, the absolute and immediate right to enter in and upon
the Premises or any part thereof, to such extent and as often
as Mortgagee in its sole discretion deems necessary or
desirable, in order to prevent or to cure any default by
Mortgagor under the Ground Lease. Mortgagee shall have the
right to pay and expend such sums of money as Mortgagee in its
sole discretion deems necessary or desirable for any such
purpose (including, without limitation, the right to employ
counsel and pay its reasonable fees and expenses). Mortgagor
shall pay to Mortgagee immediately on demand all sums of money
paid or expended by Mortgagee pursuant to this Section with
interest thereon from the date paid or expended at the Default
Rate. Any default by Mortgagor under the Ground Lease shall
constitute a Default by Mortgagor under this Mortgage in
accordance with Article IV hereof.
4. Mortgagor shall not, without the prior written consent of
Mortgagee, transfer, assign, hypothecate or encumber the
Ground Lease or Mortgagor's leasehold estate or any interest
therein, or surrender, terminate or cancel the Ground Lease,
or renew, extend, modify, change, supplement, alter or amend
the Ground Lease, either orally or in writing. As further
security for the payment and performance of the Secured
Indebtedness and for the performance of the covenants of
Mortgagor in this Section, Mortgagor hereby assigns to
Mortgagee all of Mortgagor's rights, privileges and
prerogatives, as the lessee under the Ground Lease, to renew,
extend, surrender, terminate, cancel, modify, change,
supplement, alter or amend the Ground Lease, or to transfer,
assign, hypothecate or encumber the Ground Lease or Grantor's
leasehold estate or any interest therein. Any renewal,
extension, surrender, termination, cancellation, modification,
change, supplement, alteration or amendment of the Ground
Lease, or any transfer, assignment, hypothecation or
encumbrance of the Ground Lease or of Mortgagor's leasehold
estate or any interest therein, without the prior written
consent thereto by Mortgagee (which consent may be given or
withheld in Mortgagee's sole and absolute discretion), shall
be absolutely void and of no force or effect whatsoever. As
further security to Mortgagee, Mortgagor hereby deposits with
Mortgagee Mortgagor's originals of the Ground Lease and all
supplements thereto, to be retained by Mortgagee until the
Secured Indebtedness is fully paid. So long as there is no
Default or default in the performance or observance by
Mortgagor of any of the agreements, covenants or conditions of
the Ground Lease, Mortgagee shall have no right to renew,
extend, surrender, terminate, cancel, modify, change,
supplement, alter or amend the Ground Lease, or to transfer,
assign, hypothecate or encumber the Ground Lease or
Mortgagor's leasehold estate or any interest therein. No
release or forbearance of any of Mortgagor's obligations under
the Ground Lease, whether pursuant to the terms of the
B-3
34
Ground Lease or otherwise, shall release Mortgagor from any of
its obligations under this Mortgage, including, without
limitation, Mortgagor's obligations with respect to the
payment of all rent in accordance with the Ground Lease and
the performance and observance of all the agreements,
covenants and conditions in the Ground Lease to be performed
and observed by the lessee thereunder.
5. Unless Mortgagee otherwise expressly consents in advance and
in writing (which consent may be given or withheld in
Mortgagee's sole and absolute discretion), the fee title to
the Premises and the leasehold estate created by the Ground
Lease in the Premises shall not merge but shall always remain
separate and distinct, notwithstanding the union of such
estates in either the lessor or the lessee under the Ground
Lease or in a third party by purchase or otherwise.
6. In the event proceedings are instituted by or against Owner
under 11 X.X.X.xx. 101 et. seq. (the "Bankruptcy Code"),
Mortgagor shall immediately notify Mortgagee in writing of the
institution of such proceedings. Thereafter, Mortgagor shall,
immediately following receipt, deliver to Mortgagee all
motions, complaints, notices, pleadings and communications
received by Mortgagor in connection with such proceedings. If
the Ground Lease is rejected in connection with any such
proceedings, Mortgagor shall not, without the prior written
consent of Mortgagee, elect to treat the Ground Lease as
terminated. Any such election made without Mortgagor's prior
written consent shall be null and void. Mortgagor hereby
grants, transfers and assigns to Mortgagee all Mortgagor's
rights, remedies and claims for damages at any time arising
from the rejection of the Ground Lease under the Bankruptcy
Code, including, but not limited to, all Mortgagor's rights to
remain in possession of the Premises following rejection. In
the event proceedings are instituted by or against Owner under
the Bankruptcy Code and any adversary proceeding, contested
matter, motion or notice is commenced or filed therein
regarding the Ground Lease or the Premises, Mortgagee may, at
its option, conduct and control, to the exclusion of
Mortgagor, any such litigation with counsel of Mortgagee's
choice. Mortgagee may proceed in its own name or in the name
of Borrower in connection with any such litigation, and
Mortgagor agrees to execute any and all powers,
authorizations, consents and other documents required by
Mortgagee in connection therewith. Mortgagor shall not
commence any adversary proceeding or contested matter or file
any motion or notice regarding the Ground Lease in any such
matter or proceeding without the prior written consent of
Mortgagee. Mortgagee may, at its option, apply any damages
received on account of a rejection of the Ground Lease, or any
portion thereof, against the Secured Indebtedness, or pay such
damages, or any portion thereof not applied to the Secured
Indebtedness, over to Mortgagor subject to any conditions that
Mortgagee may require. Mortgagee may proceed in its own name
or in the name of Mortgagor regarding any such claims and may
file and prosecute, to the exclusion of Mortgagor, any proofs
of claim, complaints, motions, applications, notices and other
documents in connection therewith. Mortgagor shall execute any
and all powers, authorizations, consents and other documents
required by Mortgagee in connection therewith.
Section B8. Non-Recourse as to Trustees. All persons
having any claim hereunder against the Ramco-Xxxxxxxxxx
Properties Trust (the "Trust") or in connection with any
matter that is the subject hereof shall look solely to the
trust assets of the Trust, and in no event shall such
obligations of the Trust be enforceable against any
shareholder, trustee, officer, employee or agent of the Trust
personally.
Section B9. Amended, Restated and Consolidated Instrument. This
Mortgage is executed and delivered in connection with the consummation of the
New Loan and amends, restates and consolidates the following instruments:
1. Mortgage and Security Agreement dated May 1, 1996 executed by Mortgagor in
favor of Lincoln and recorded in Liber 3303, Page 747, Genesee County Records,
as amended by an Amendment to Mortgage dated December 17, 1997 and recorded in
Liber 3689, Page 308, Genesee County Records;
2. Mortgage and Security Agreement dated May 1, 1996 executed by Mortgagor in
favor of Lincoln and recorded in Liber 1519, Page 625, Xxxxxxx County Records,
as amended by an Amendment to Mortgage dated December 17, 1997 and recorded in
Liber 1558, Page 769, Xxxxxxx County Records;
3. Mortgage and Security Agreement dated May 1, 1996 executed by Mortgagor in
favor of Lincoln and recorded in Liber 1519, Page 627, Xxxxxxx County Records,
as amended by an Amendment to Mortgage dated December 17, 1997 and recorded in
Liber 1558, Page 768, Xxxxxxx County Records;
4. Mortgage and Security Agreement dated May 1, 1996 executed by Mortgagor in
favor of Lincoln and recorded in Liber 07016, Page 540, Macomb County Records,
as amended by an Amendment to Mortgage dated December 17, 1997 and recorded in
Liber 07822, Page 424, Macomb County Records;
5. Mortgage and Security Agreement dated May 1, 1996 executed by Mortgagor in
favor of Lincoln and recorded in Liber 07016, Page 621, Macomb County Records,
as amended by an Amendment to Mortgage dated December 17, 1997 and recorded in
Liber 07822, Page 430, Macomb County Records;
6. Mortgage and Security Agreement dated May 1, 1996 executed by Mortgagor in
favor of Lincoln and recorded in Liber 16276, Page 152, Oakland County Records,
as amended by an Amendment to Mortgage dated
B-4
35
December 17, 1997 and recorded in Liber 17932, Page 080, Oakland County Records;
7. Mortgage and Security Agreement dated May 1, 1996 executed by Mortgagor in
favor of Lincoln and recorded in Liber 16276, Page 183, Oakland County Records,
as amended by an Amendment to Mortgage dated December 17, 1997 and recorded in
Liber 17932, Page 086, Oakland County Records;
8. Mortgage and Security Agreement dated May 1, 1996 executed by Mortgagor in
favor of Lincoln and recorded in Liber 16276, Page 213, Oakland County Records,
as amended by an Amendment to Mortgage dated December 17, 1997 and recorded in
Liber 17932, Page 073, Oakland County Records;
9. Mortgage and Security Agreement dated May 1, 1996 executed by Mortgagor in
favor of Lincoln and recorded in Liber 28821, Page 408, Xxxxx County Records, as
amended by an Amendment to Mortgage dated December 17, 1997 and recorded in
Liber 29776, Page 126, Xxxxx County Records; and
10. Mortgage dated December 17, 1997 executed by Mortgagor in favor of Lincoln
and recorded in Liber 1557, Page 1288, Xxxxxxx County Records.
Notwithstanding that separate real property and the revenue sources
therefrom shall be pledged to secure the Loan, Mortgagor acknowledges that it
has received adequate consideration and economic benefit by reason of Mortgagee
closing and funding the Loan. In the event of a Default, Mortgagor waives any
right to require Mortgagee to marshal assets of Mortgagor, nor shall Mortgagor
have the right to have any of the Tracts sold or applied in any particular order
to satisfy the Loan.
Section B10. Participation. The Loan secured by this Mortgage is
represented by the Retainage Notes and the Participant Notes. The relationship
between Lincoln and the Participants is governed by a separate participation
agreement or agreements. Pursuant to such agreement(s), Lincoln has the
authority to exercise all right of the Mortgagee under this Mortgage, all rights
of the Holder under the Note and all rights of the Lender under the Collateral
Loan Documents. Lincoln shall be conclusively be deemed to have the authority to
take all actions undertaken by Lincoln with respect to the foregoing
instruments, and Mortgagor shall have no duty, obligation or right to inquire as
to the authority of Lincoln to act in such capacity.
This Exhibit shall not be binding, and shall have no force and effect,
unless executed by the Borrower below:
RAMCO-XXXXXXXXXX PROPERTIES, L.P.,
a Delaware limited partnership
By: RAMCO-XXXXXXXXXX PROPERTIES
TRUST, a Maryland real estate
investment trust,
its general partner
By:
-----------------------------------------
Printed Name:
------------------------------
Title:
-------------------------------------
B-5
