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EXHIBIT 4.06(d)
MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT
OF RENTS AND LEASES, FIXTURE FILING AND FINANCING STATEMENT
THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND LEASES,
FIXTURE FILING AND FINANCING STATEMENT ("Mortgage") is made and granted this
29th day of November, 1996, by FRANK'S NURSERY & CRAFTS, INC., a Michigan
corporation, whose address is 0000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
("Mortgagor"), to COMERICA BANK, a Michigan banking corporation, whose address
is Comerica Tower at Detroit Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 ("Mortgagee").
Mortgagor is or may become indebted to Mortgagee in the amount of
FORTY MILLION DOLLARS ($40,000,000) pursuant to that certain Mortgage-Backed
Credit Agreement of even date herewith between Mortgagor and General Host
Corporation (the "Borrowers") and Mortgagee (the "Loan Agreement") and a
Promissory Note executed or to be executed pursuant to the Loan Agreement the
("Note") and the other Documents (as defined in the Loan Agreement).
THIS MORTGAGE SECURES FUTURE ADVANCES AND IS A FUTURE ADVANCE MORTGAGE
UNDER ACT 348 OF THE PUBLIC ACTS OF 1990 (MCLA 565.901 ET SEQ). THE MAXIMUM
PRINCIPAL AMOUNT EXCLUDING PROTECTIVE ADVANCES, THAT MAY BE SECURED BY THIS
MORTGAGE IS FORTY MILLION DOLLARS ($40,000,000).
GRANTING CLAUSE
In order to secure payment of the Indebtedness (hereinafter defined),
the performance of the covenants, terms and conditions hereof and of any of the
Documents, Mortgagor does MORTGAGE AND WARRANT to Mortgagee, subject only to the
Permitted Encumbrances (hereinafter defined), real estate owned by Mortgagor
situated in Xxxxx County, Michigan described more particularly on Exhibit A
attached hereto;
Together with all buildings and improvements now or hereafter existing
upon the real estate or any part thereof, and all heretofore or hereafter
vacated alleys, streets and sidewalks abutting the real estate and all
easements, licenses, rights-of-way and privileges benefitting the real estate
or in anywise appertaining thereto, if any, and together with all Fixtures
(hereinafter defined); and
Together with all of the rents, profits and leases of the Premises
(hereinafter defined) and all of the tenements, hereditaments, and
appurtenances thereto belonging or in anywise appertaining and any and all
reversions and remainders, and all of the estate, right, title, interest,
property, claim and demand whatsoever of Mortgagor in and to the Premises and
any part thereof; and
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Mortgagor grants to Mortgagee a security interest in all of the
Fixtures, but if the same be deemed to be part of the real estate then
Mortgagor mortgages and warrants such Fixtures to Mortgagee. Mortgagor grants
to Mortgagee a security interest in the Accounts and Specific Intangibles (all
hereinafter defined), and all proceeds of the foregoing.
DEFINITIONS
FOR THE PURPOSE OF THIS MORTGAGE UNLESS THE CONTEXT SHALL OTHERWISE REQUIRE:
A. "ACCOUNTS" are any right to payment in which Mortgagor has an
interest arising out of ownership, of the Premises and include all rents,
profits and income of the Premises (to the extent the same are or may hereafter
be subject to the Uniform Commercial Code as adopted in the jurisdiction where
the Premises are situated) and all accounts receivable which are any part of or
arise from such rents, profits and income which otherwise relate in any way to
the Premises.
B. "ASBESTOS" shall have the meanings provided under the Relevant
Environmental Laws, and shall include, but not be limited to, asbestos fibers
and friable asbestos which represents a health risk, as such terms are defined
under the Relevant Environmental Laws.
C. "EVENT OF DEFAULT" shall have the meaning set forth in
paragraph 11.
D. "FIXTURES" are all goods and equipment which are or hereafter
become fixtures and are located upon or within the Premises or are now or
hereafter attached to the Premises or Fixtures, including, but not limited to,
any and all partitions, dynamos, screens, awnings, motors, engines, boilers,
furnaces, pipes, plumbing, cleaning, call and sprinkler systems, fire
extinguishing apparatus and equipment, water tanks, heating, ventilating,
air-conditioning and air-handling equipment, built-in refrigerated rooms, gas
and electric machinery, elevators and elevator equipment and appurtenances and
equipment, permanently affixed to the real estate and all replacements thereof
and all proceeds of such Fixtures.
E. "SPECIFIC INTANGIBLES" are any and all of the right, title and
interest of Mortgagor in and to (i) all insurance policies and the proceeds
thereof or claims paid or to be paid thereunder relating in any manner to the
Premises or to the rents thereof, and any return of premiums, and (ii) any
awards or settlements of an eminent domain proceeding involving a taking of the
Premises or any part thereof or any awards or settlements made in an eminent
domain proceeding arising out of any claim of diminution in value of the
Premises, (iii) any damage awards or settlements arising out of or connected
with any lease or the breach of any lease or any damages to the Premises or to
Mortgagor's interest therein.
F. "HAZARDOUS WASTES" shall mean any of the following as defined
by the Relevant Environmental Laws: solid wastes; toxic or hazardous
substances, wastes, or contaminants (including, but not limited to,
polychlorinated biphenyls ("PCB's"), and urea formaldehyde foam insulation);
and discharges of sewage or effluent.
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G. Any reference to "INDEBTEDNESS" means the principal, interest,
fees and all other sums from time to time owing by the Borrowers under the Loan
Agreement or other Documents or evidenced by the Note and all renewals,
extensions and modifications thereof, and all other amounts at any time due or
to become due under the Documents, and all sums, with interest thereon,
advanced to protect the security of this Mortgage, and all other indebtedness
and liabilities of Mortgagor or any guarantor to Mortgagee, whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising and howsoever evidenced.
H. "PERMITTED ENCUMBRANCES" are the Permitted Liens (defined in
the Loan Agreement) and the encumbrances (if any) set forth on Exhibit B
attached hereto.
I. Any reference to "PREMISES" shall be deemed to apply without
limitation to all of the above described real estate, and to all buildings and
improvements now or hereafter located thereon, and to all heretofore or
hereafter vacated alleys, streets and sidewalks, easements, licenses,
privileges, right-of-ways, reversions, remainders and all rights, titles,
interests, property, claims and demands of Mortgagor therein and to the rents,
profits, income and leases of the Premises and to the Fixtures.
J. "RELEVANT ENVIRONMENTAL LAWS" shall mean all applicable
federal, state and local laws, rules, regulations, orders, judicial
determinations, and decisions or determinations by any judicial, legislative or
executive body of any governmental or quasi-governmental entity, whether in the
past, the present or the future, with respect to: (A) the installation,
existence, or removal of, or exposure to, Asbestos on the Premises; (B) the
existence on, discharge from, or removal from the Premises of Hazardous Wastes;
and (C) the effects on the environment of the Premises or of any activity now,
previously, or hereafter conducted on the Premises. The Relevant Environmental
Laws shall include, but not be limited to, the following: (1) the
Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. Sections 9601 et seq.; the Superfund Amendments and Reauthorization
Act, Public Law 99-499, 100 Stat. 1613; the Resource Conservation and Recovery
Act, 42 U.S.C. Sections 6901 et seq.; the National Environmental Policy Act, 42
U.S.C. Section 4321; the Safe Drinking Water Act, 42 U.S.C. Sections 300F et
seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601; the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801; the Federal Water
Pollution Control Act, 33 U.S.C. Sections 1251 et seq.; the Clean Air Act, 42
U.S.C. Sections 7401 et seq.; and the regulations promulgated in connection
therewith; (2) Environmental Protection Agency regulations pertaining to
Asbestos (including 40 C.F.R. Part 61, Subpart M); Occupational Safety and
Health Administration regulations pertaining to Asbestos (including 29 C.F.R.
Sections 1910.1001 and 1926.58); as each may now or hereafter be amended; and
(3) any state and local laws and regulations pertaining to Hazardous Wastes
and/or Asbestos.
MORTGAGOR DOES HEREBY COVENANT AS FOLLOWS:
1. PAYMENT OF INDEBTEDNESS. Mortgagor shall pay the Indebtedness
according to the terms of the Loan Agreement, the Note, and the other Documents
and shall perform all the terms, covenants and conditions hereof and of each of
the Documents.
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2. TITLE. At the time of the execution and delivery of this
Mortgage, Mortgagor is well and truly seized of the Premises in fee simple,
free of all liens, encumbrances and easements whatsoever, whether prior or
subordinate hereto, except Permitted Encumbrances.
Mortgagor shall forever warrant and defend the Premises against any
and all claims whatsoever, including all security interests. Except and to the
extent of the Permitted Encumbrances, the lien created hereby is and shall be
kept a first lien upon the Premises and the security interests created hereby
shall be kept as first security interests in and upon the Fixtures, Accounts
and Specific Intangibles and every part thereof. Mortgagor shall pay when due
all amounts which might become a lien upon the Premises prior to this Mortgage.
Mortgagor shall not grant or suffer a security interest in any of the Fixtures,
Accounts or Specific Intangibles prior to the security interest granted to
Mortgagee. Mortgagor, upon Mortgagee's request, shall execute all other
instruments necessary to confirm or protect the lien of this Mortgage and the
security interests granted herein including, without limitation, security
agreements, financing statements and renewals thereof.
3. TAXES. Except as specifically provided to the contrary in the
Loan Agreement, Mortgagor shall pay forthwith prior to the imposition of any
penalty or interest all taxes and assessments that may be levied upon the
Premises and shall promptly deliver to Mortgagee receipts showing payment
thereof. Mortgagor shall pay when due all taxes and assessments that may be
levied upon or on account of this Mortgage or the Indebtedness secured hereby
or upon the interest or estate in the Premises created or represented by this
Mortgage, whether levied against Mortgagor or otherwise. If at any time
internal revenue stamps are required to be affixed to this Mortgage or any
other Document, Mortgagor shall pay for the same with any interest or penalties
imposed in connection therewith. In the event that payment by Mortgagor, even
if voluntarily made, of any tax referred to in this paragraph would be contrary
to public policy or would result in the payment of interest in excess of the
rate permitted by law, then Mortgagor shall have no obligation to pay the
portion of such tax which would result in the violation of public policy or the
payment of such excess interest; provided, however, in any such event, at any
time after the enactment of the law providing for such tax, Mortgagee, at its
election, may declare the entire principal balance of the Indebtedness secured
hereby, together with interest thereon, to be due and payable immediately.
4. WASTE, ALTERATIONS, COMPLIANCE WITH LAW. Mortgagor shall
abstain from and shall not suffer the commission of waste on the Premises and
shall keep the same in good repair (reasonable wear and tear excepted) and
shall make replacements thereto as and when the same become necessary.
Mortgagor shall promptly notify Mortgagee, in writing, of the occurrence of any
material loss or damage to the Premises. Mortgagor shall not materially alter
the Premises or Fixtures, or remove the Fixtures from the Premises, or permit
any tenant or other person to do so, without the prior written consent of
Mortgagee which consent shall not be unreasonably withheld; provided, however,
Mortgagor may replace any Fixtures which require replacement in the exercise of
Mortgagor's business judgment, with Fixtures of like or better quality than
those replaced. Mortgagor shall not permit any portion of the Premises to be
used for any unlawful purpose. Mortgagor shall comply in all material respects
with all laws, ordinances, regulations and orders of all public authorities
having jurisdiction thereof and all covenants, conditions and restrictions
relating to the Premises or the use, occupancy and
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maintenance thereof. Mortgagor shall permit Mortgagee at any time, and from
time to time, to enter the Premises for the purpose of inspecting the same
during normal business hours.
5. HAZARDOUS WASTES.
A. Representations and Warranties. Except as specifically
described in the Loan Agreement, the Mortgagor represents, warrants to the best
of its knowledge and covenants to the Mortgagee as follows:
(i) At all times since the vesting of title to the
Premises in the Mortgagor and (to the best of Mortgagor's knowledge)
at all times prior to the vesting of title to the Premises in the
Mortgagor, there are no and have been no violations of the Relevant
Environmental Laws respecting the Premises and no consent orders have
been entered with respect thereto.
(ii) At all times since the vesting of title to the
Premises in the Mortgagor and (to the best of Mortgagor's knowledge)
at all times prior to the vesting of title to the Premises in the
Mortgagor, there are no and have been no Hazardous Wastes or Asbestos
either at, upon, under or within, or discharged or emitted at or from,
the Premises, including, but not limited to, the air, soil, surface,
and ground water; no Hazardous Wastes or Asbestos have flowed, blown
or otherwise become present at the Premises from neighboring land; and
no Hazardous Wastes or Asbestos have been removed from the Premises
other than those Hazardous Wastes which are necessary and commercially
reasonable for the conduct of the Mortgagor's business operated on the
Premises and which Hazardous Wastes have been, at all times prior to
the date hereof, and at all times hereafter shall be, handled and
disposed of in compliance with all Relevant Environmental Laws and
industry standards and in a commercially reasonable manner by the
Mortgagor other than inventory sold in the ordinary course of
Borrower's business.
(iii) The Premises will not be used for the purpose of
storing Hazardous Wastes other than inventory sold in the ordinary
course of Borrower's business, and no such storage or use will
otherwise be allowed on the Premises which will cause or increase the
likelihood of causing the release of Hazardous Wastes onto the
Premises.
(iv) No Authorized Officer of Mortgagor is aware of any
claims or litigation, and has not received any communication from any
person (including any governmental authority), concerning the presence
or possible presence of Hazardous Wastes or Asbestos at the Premises
or concerning any violation or alleged violation of the Relevant
Environmental Laws respecting the Premises. The Mortgagor shall
promptly notify the Mortgagee of any such claims and shall furnish
Mortgagee with a copy of any such communications received by
Mortgagor.
(v) The Mortgagor shall notify Mortgagee promptly and in
reasonable detail in the event that the Mortgagor becomes aware of or
suspects the presence of Hazardous Wastes (other than those Hazardous
Wastes which are necessary and commercially
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reasonable for the conduct of the Mortgagor's business operated on the
Premises and which Hazardous Wastes have been, at all times
prior to the date hereof, and at all times hereafter shall be, handled
and disposed of in compliance with all Relevant Environmental Laws and
industry standards and in a commercially reasonable manner by the
Mortgagor) or Asbestos or a violation of the Relevant Environmental
Laws at the Premises.
(vi) The Mortgagor shall ensure that the Premises complies
and continues to comply in all material respects with the Relevant
Environmental Laws.
(vii) If the Premises are used or maintained so as to
subject the Mortgagor, the Mortgagee or the user of the Premises to a
claim of violation of the Relevant Environmental Laws (unless
contested in good faith by appropriate proceedings), the Mortgagor
shall immediately remedy and fully cure any conditions arising
therefrom, at its own cost and expense.
B. Mortgagor's Obligations. At its sole cost and expense, the
Mortgagor shall:
(i) Pay immediately when due the cost of compliance with
the Relevant Environmental Laws.
(ii) Keep the Premises free of any lien imposed pursuant
to the Relevant Environmental Laws.
C. Mortgagee's Options. In the event that the Mortgagor fails to
comply with the requirements of this paragraph 5, after notice to the
Mortgagor, Mortgagee may, but shall not be obligated to, exercise its right to
do one or more of the following: (i) declare that such failure constitutes an
Event of Default under paragraph 11 herein; and/or (ii) take any and all
actions, at the Mortgagor's expense, that Mortgagee deems necessary or
desirable to cure said failure of compliance.
All costs incurred pursuant to this paragraph 5 shall become
immediately due and payable with interest thereon at the rate at which interest
accrues in the Note on amounts after the same become due, and the amount
thereof, including any such interest, shall, if incurred prior to the
foreclosure of this Mortgage or the delivery of a deed in lieu of foreclosure,
be added to the Indebtedness and shall be secured by this Mortgage and each
other Document granting Mortgage collateral or security for Indebtedness.
D. Indemnity. Mortgagee shall not be liable for and the
Mortgagor shall immediately pay to Mortgagee when incurred and shall indemnify,
defend and hold Mortgagee harmless from and against, all loss, cost, liability,
damage and expense (including, but not limited to, reasonable attorneys' fees
and costs incurred in the investigation, defense and settlement of claims) that
the Mortgagee may suffer or incur (as holder of this Mortgage, as mortgagee in
possession or as successor in interest to the Mortgagor as owner of the
Premises by virtue of foreclosure or acceptance of a deed in lieu of
foreclosure) as a result of or in connection in any way with any of the
Relevant Environmental Laws (including the assertion that any lien existing
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pursuant to the Relevant Environmental Laws takes priority over the lien of
this Mortgage), any environmental assessment or study from time to time
undertaken or requested by the Mortgagor or Mortgagee pursuant to paragraph 5
hereof, or breach of any covenant or undertaking by the Mortgagor herein;
provided, however, the Mortgagor shall have no obligation hereunder to the
Mortgagee with respect to indemnified liabilities arising solely from the gross
negligence or willful misconduct of the Mortgagee. Any environmental audit
conducted at the Mortgagee's request shall not be deemed a waiver or
relinquishment of the Mortgagee's right to rely on the covenants,
representations, warranties or agreements made herein and in any other
Document, or to receive the protection and indemnity outlined above. If at any
time the Mortgagee reasonably believes that any Relevant Environmental Law has
been or is being violated, the Mortgagee shall have the right to cause an
environmental audit to be conducted at Mortgagor's sole expense or to require
Mortgagor, at Mortgagor's expense, to have an environmental audit done and to
furnish evidence satisfactory to the Mortgagee that no such violation has
occurred.
E. Survival. The provisions of this paragraph 5 shall survive
the foreclosure of this Mortgage, the delivery of a deed in lieu of
foreclosure, and the payment of the Indebtedness.
6. INSURANCE. Mortgagor shall maintain the insurance required
under the Loan Agreement.
7. ESCROWS FOR TAXES AND INSURANCE. Immediately upon the
occurrence and during the continuance of an Event of Default, upon Mortgagees
demand therefor, Mortgagor shall pay to Mortgagee monthly, at the times
provided in the Note for payment of principal and/or interest, installments for
the purpose of paying taxes, assessments and insurance premiums. The amount of
the installments to be paid may change from time to time as taxes, assessments
and insurance premiums change. To determine the monthly installment, the
amount and due date of each separate tax, assessment and insurance premium are
first determined. The amount of the monthly installment is calculated by
dividing each separate tax, assessment and insurance premium by twelve (12) and
adding the resulting figures. The installments will be so timed as to assure to
Mortgagee that it will have sufficient funds to pay each respective tax,
assessment or insurance premium one month before the due date. Additionally,
upon Mortgagee's demand for such installments, Mortgagor will deposit with
Mortgagee a sufficient sum for each tax, assessment or insurance premium,
computed independently as set forth above, which, when added to the
installments that come due before the next due date for such tax, assessment or
premium, will give Mortgagee sufficient funds to pay the same one month before
the due date. All amounts paid to Mortgagee hereunder will be held by
Mortgagee as additional security for the Indebtedness and may be commingled by
Mortgagee with any other funds. Mortgagor shall not be entitled to receive
interest on account of any sums held hereunder. Nothing contained herein shall
in any manner limit the obligation of Mortgagor to pay taxes and assessments;
provided, however, if no Event of Default has occurred hereunder nor any act
occurred which with the giving of notice or passage of time or both would
constitute an Event of Default hereunder and provided Mortgagor delivers to
Mortgagee at least thirty (30) days before the same become due all invoices,
bills and statements respecting the foregoing items, the payments made under
this paragraph shall be applied by Mortgagee for the purposes for which they
are made. In addition to the escrows for taxes and insurance, Mortgagor shall
deposit with Mortgagee, in Mortgagor's account all security deposits relating
to the Premises which shall be
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returned as and when tenants are entitled thereto. Upon and during the
continuance of an Event of Default by Mortgagor, Mortgagee may, at its option,
but without obligation on its part so to do, apply all amounts held (other than
security deposits which shall be held for the purpose intended) toward the
payment of taxes, assessments and insurance premiums and/or toward the payment
of any amounts payable by Mortgagor to Mortgagee under this Mortgage and/or
toward the payment of the Indebtedness or any portion thereof, whether or not
the same is then due and payable.
8. PERFORMANCE BY MORTGAGEE. If an Event of Default shall occur
with respect to the obligations of Mortgagor in the payment of any taxes or
assessments or in making repairs or replacements or in procuring and
maintaining insurance and paying the premiums therefor, or in keeping or
performing any other covenant, term or condition hereof, Mortgagee may, at its
option and without any obligation on its part so to do, pay the taxes and
assessments, make such repairs and replacements, effect such insurance, pay the
premiums, and perform any other covenant, term or condition of Mortgagor
herein. All amounts expended by Mortgagee hereunder shall be secured hereby
and shall be due and payable by Mortgagor to Mortgagee forthwith on demand,
with interest thereon at the rate at which interest accrues in the Note on
amounts after the same become due.
9. STATUTORY WASTE. Nonpayment of any taxes or assessments
levied or assessed upon the Premises, except to the extent being contested by an
appropriate proceedings being diligently pursued by Mortgagor, or nonpayment of
any insurance premium upon any insurance policy relating to the Premises, or any
part thereof, shall constitute waste, and shall entitle Mortgagee to exercise
the remedies afforded by Section 600.2927 of the Michigan Revised Judicature Act
of 1961, as now or hereafter amended, and by any other statute or law now or
hereafter in effect. Mortgagor hereby consents to the appointment of a receiver
should Mortgagee elect such remedy.
10. PAYMENT OF MORTGAGEE COSTS. In the event that Mortgagee is
made a party to any suit or proceedings instituted after the date hereof by
reason of the interest of Mortgagee in the Premises, or if Mortgagee is
required to arbitrate or negotiate any claim asserted against it by reason of
its interest in the Premises, whether or not such claim results in a suit or
proceeding, Mortgagor shall reimburse Mortgagee for all costs and expenses,
including reasonable attorneys' fees. All amounts incurred by Mortgagee
hereunder shall be secured hereby and shall be due and payable by Mortgagor to
Mortgagee forthwith on demand, with interest thereon at the rate at which
interest accrues on the Note on amounts after the same become due. Wherever in
this Mortgage or in any other Document an obligation is imposed upon Mortgagor
to pay the reasonable attorney's fees of Mortgagee, such fees shall be deemed
to include all reasonable fees incurred, whether such fees are incurred in
consulting an outside or in-house attorney or in a proceeding of any kind and
if in a proceeding, whether at the trial or appellate stages.
11. DEFAULT AND REMEDIES.
A. It shall be an Event of Default hereunder if there occurs any
"Event of Default" as defined in the Loan Agreement.
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B. Mortgagee may at any time after the occurrence and during the
continuance of any Event of Default (i) without further notice, declare the
Indebtedness, including the then applicable prepayment premium, if any, to be
due and payable immediately; (ii) exercise any and all other rights and
remedies provided by this Mortgage or the Note or any other Document, or by
law, including appointment of a receiver to which appointment Mortgagor
consents. Mortgagor acknowledges that the commencement of foreclosure
proceedings shall be deemed acceleration. Mortgagee shall have the right from
time to time to 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 principal sum secured or any
other sums evidenced by the Note or secured by this Mortgage shall be due, and
without prejudice to the right of Mortgagee thereafter to bring an action of
foreclosure, or any other action, for a default or defaults by the Mortgagor
existing at the time such earlier action was commenced. Any payment made in
accordance with the terms of this Mortgage by any person at any time liable for
the payment of the whole or any part of the sums now or hereafter secured by
this Mortgage, or by any subsequent owner of the Premises, or by any other
person whose interest in the Premises might be prejudiced in the event of a
failure to make such payment, or by any stockholder, officer or director of a
corporation which at any time may be liable for such payment or may own or have
such an interest in the Premises, shall be deemed, as between the Mortgagee and
all persons who at any time may be liable as aforesaid or may own the Premises,
to have been made on behalf of all such persons.
C. Any failure by the Mortgagee to insist upon the strict
performance by the Mortgagor of any of the terms and provisions hereof shall
not be deemed to be a waiver of any of the terms and provisions hereof, and the
Mortgagee, notwithstanding any such failure, shall have the right thereafter to
insist upon the strict performance by the Mortgagor of any and all of the terms
and provisions of this Mortgage to be performed by the Mortgagor.
D. Neither the Mortgagor nor any other person now or hereafter
obligated for the payment of the whole or any part of the Indebtedness shall be
relieved of such obligation by reason of the failure of the Mortgagee to comply
with any request of the Mortgagor or of any other person so obligated to take
action to foreclose this Mortgage or otherwise enforce any of the provisions of
this Mortgage or of any obligations secured by this Mortgage, or by reason of
the release, regardless of consideration, of the whole or any part of the
security held for the Indebtedness, or by reason of any agreement or
stipulation between any subsequent owner or owners of the Premises and the
Mortgagee extending the time of payment or modifying the terms of the Documents
without first having obtained the consent of the Mortgagor or such other
person. In the latter event, the Mortgagor and all such other persons shall
continue to be liable to make such payments according to the terms of any such
agreement of extension or modification unless expressly released and discharged
in writing by the Mortgagee.
E. Regardless of consideration, and without the necessity for any
notice to or consent by the holder of any subordinate lien on the Premises, the
Mortgagee may release the obligation of anyone at any time liable for any of
the Indebtedness or any part of the security held for the Indebtedness and may
extend the time of payment or otherwise modify the terms of the Documents
without, as to the security or the remainder thereof, in anywise impairing or
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affecting the lien of this Mortgage or the priority of such lien, as security
for the payment of the Indebtedness as it may be so extended or modified, over
any subordinate lien. Mortgagee may resort for the payment of the Indebtedness
to any other security therefor held by the Mortgagee in such order and manner
as the Mortgagee may elect.
12. POWER OF SALE. Upon and during the continuance of an Event of
Default, power is granted to Mortgagee to sell the Premises or any part thereof
at public auction, and to convey same to the purchaser after notice as required
by the statutes of the State of Michigan for foreclosure of mortgages by
advertisement being Sections 600.3201 et seq., Michigan Compiled Laws, as
amended. Upon and during the continuance of an Event of Default, Mortgagee
shall have the remedies of a secured party under the Michigan Uniform
Commercial Code, including without limitation, the right to notify account
debtors and to collect or compromise or xxx for collection of all or any
Accounts or and Specific Intangibles by any lawful means. For the purpose of
taking possession of the Fixtures, Mortgagee may enter upon any premises on
which the Fixtures or any part thereof may be situated and hold the Fixtures
upon the Premises (without charge to Mortgagee), or dispose of the Fixtures or
Goods on the Premises, or remove the same to such other place as Mortgagee shall
determine. Upon demand by Mortgagee, Mortgagor shall assemble the Fixtures and
make them available to Mortgagee at the Premises. Any requirement of notice
under the Uniform Commercial Code shall be met if such notice is mailed to
Mortgagor, postage prepaid, at least ten (10) days before the event with respect
to which notice is required. Mortgagee shall be entitled to recover all
expenses incurred by Mortgagee in retaking, holding, preparing for sale, selling
and collecting the Fixtures, Accounts and Specific Intangibles, together with
reasonable attorney's fees and other expenses incurred by Mortgagee in
protecting and enforcing its rights and remedies with respect to the Indebtness,
the Fixtures, Accounts and Specific Intangibles.
WARNING - THIS PARAGRAPH 12. CONTAINS A WAIVER OF IMPORTANT LEGAL RIGHTS.
This Mortgage contains a power of sale which permits the Mortgagee to
cause the Premises to be sold upon an Event of Default. The Mortgagee may
elect to cause the Premises to be sold by advertisement rather than pursuant to
court action, and Mortgagor hereby voluntarily and knowingly waives any right
Mortgagor may have by virtue of any applicable constitutional provision or
statute to any notice or court hearing prior to the exercise of the power of
sale, except as may be expressly required by the Michigan statute governing
foreclosures by advertisement. In addition, Mortgagor, to the extent permitted
by law, hereby knowingly and voluntarily waives any right Mortgagor may have to
remain in possession of the Premises or to collect any rents or income
therefrom during the pendency of any foreclosure proceedings and during any
applicable redemption period. Also, paragraph 17 entitles the Mortgagee to
require immediate payment of the balance of the Indebtedness in full if the
Premises are sold or otherwise transferred without the prior written consent of
Mortgagee. By execution of this Mortgage, the Mortgagor represents and
acknowledges that the meaning and consequences of this paragraph have been
discussed as fully as desired by the Mortgagor with the Mortgagor's legal
counsel.
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11
13. DISTRIBUTION UPON SALE. Upon a foreclosure sale of the
Premises or any part thereof, the proceeds of such sale shall, subject to
applicable law, be applied in such order as Mortgagee elects:
(a) To the payment of all costs of the suit or foreclosure,
including reasonable attorneys' fees and the cost of title
searches and abstracts;
(b) To the payment of all other expenses of Mortgagee, including
all monies expended by Mortgagee and all other amounts payable
by Mortgagor to Mortgagee hereunder, with interest thereon;
(c) To the payment of all other Indebtedness including the
interest thereon;
(d) To the payment of the surplus, if any, to Mortgagor or to
whomsoever shall be entitled thereto.
14. SALE IN PARCELS. Upon any foreclosure sale of the Premises,
the same may be sold either as a whole or in parcels, as Mortgagee may elect
and, if in parcels, the same may be divided as Mortgagee may elect and, at the
election of Mortgagee, may be offered first in parcels, in any manner or order
as Mortgagee may elect in its sole discretion, and then as a whole, any law,
statutory or otherwise, to the contrary notwithstanding, and Mortgagor hereby
waives the right to require any such sale to be made in parcels or the right to
select such parcels.
15. EMINENT DOMAIN. In the event there is a proceeding relating
to the Premises or any part thereof under the power of eminent domain, the
entire award rendered in such proceeding or any settlement of such proceeding
shall be paid to Mortgagee to be applied in accordance with the Loan Agreement.
16. ASSIGNMENT OF LEASES AND RENTS. A. As additional security
for the payment of the Indebtedness and the performance of the covenants, terms
and conditions contained herein and in any other Document, Mortgagor does
hereby assign, mortgage and warrant to Mortgagee, all rents, income and profits
of the Premises and all present and future leases pertaining thereto and all
guarantees of the tenant's obligations thereunder, together with the right in
the Mortgagee to enforce the leases, to take possession of the Premises and
every part thereof, and to collect the rents and profits and to apply the same,
as hereinafter provided. Notwithstanding this assignment, until an Event of
Default occurs, Mortgagor shall have the right to collect the rents, profit and
income of the Premises.
B. Mortgagor shall not, without the prior written consent of
Mortgagee, accept any prepaid rent under any lease of the Premises except for
the then current month and security deposits; nor shall Mortgagor enter into
any new lease of the Premises or any part thereof except in accordance with a
form of lease approved in advance by Mortgagee. Mortgagor shall not take or
suffer any actions which would effectuate a merger of a lease with a fee so as
to terminate the lessee's obligations. Any act in violation of this paragraph
16 B shall be void and of no effect.
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12
C. Mortgagor shall perform all of the obligations of the lessor
under all leases of the Premises or any part thereof in accordance with the
terms and provisions thereof and shall not suffer or permit any impairment of
the security thereof. Mortgagor shall manage the Premises and every part
thereof in accordance with sound business practices. Mortgagor shall promptly
take such actions as are reasonable and prudent to enforce the lessee's
obligations under any lease. Mortgagee shall have no obligations,
responsibility or liability of lessor under any lease assigned hereby, and
shall have no obligation to account for any security deposit unless the same
has been actually deposited with Mortgagee.
D. Mortgagor shall deliver to Mortgagee within ten (10) days
after written request from Mortgagee a statement in writing setting forth the
names of the tenants of the Premises, the expiration dates of the leases, and
the amounts of rents and any other sums due thereunder, and together therewith
shall furnish to Mortgagee copies of all such leases. Mortgagor shall, upon
written request, execute and deliver to Mortgagee such other and further
documents as may be reasonably appropriate to confirm the assignment of rents,
profits, and leases made hereby.
E. Upon an Event of Default, Mortgagee may, pursuant to the
assignment herein contained, and in addition to exercising any and all other
rights and remedies provided by this Mortgage or by law, including the
appointment of a receiver (to which appointment Mortgagor consents), or by any
other Document, with or without foreclosure or entry upon the Premises, demand,
collect, xxx for, receive, compromise, and compound all rents, income and
arrears of rent as may then or thereafter be due and owing from the tenants,
occupiers, lessees or assignees of any lessees of the Premises and Mortgagor
hereby authorizes and directs the tenants, occupiers, lessees or assignees of
any lessees of the Premises to make payment to Mortgagee of rent and any other
sums then due and to become due under the leases upon receipt of written demand
therefor by Mortgagee, without liability for the determination of Mortgagee's
rights thereto. In such event, Mortgagee shall have the power, either directly
or through a rental agent selected by Mortgagee, to operate, maintain and
repair the Premises, and to amend any lease and to exercise any and all rights
of Mortgagor with respect to any lease; and out of the rents and income thus
received, after the payment of all costs and expenses of Mortgagee, to retain
all sums then or thereafter due hereunder, and also a commission of six percent
(6%) upon all such rents and income thus collected as compensation for its
services in making such collections. The rights and powers of Mortgagee
hereunder shall continue and remain in full force and effect until all amounts
due Mortgagee hereunder, including any deficiency resulting from foreclosure
sale, are paid in full, and shall continue after commencement of foreclosure
and after foreclosure sale and until expiration of any applicable period of
redemption, notwithstanding the sale of the Premises to a purchaser other than
Mortgagee. Mortgagee shall not be liable to Mortgagor or anyone claiming under
or through Mortgagor by reason of anything done or left undone by Mortgagee
hereunder, except for damage resulting from gross negligence or willful
misconduct of Mortgagee.
F. Mortgagor covenants, represents and warrants to Mortgagee that
Mortgagor has not executed any prior assignment of the leases of the Premises,
or of the rents, profits and income of the Premises except to Mortgagee and
Mortgagor covenants it will not hereafter execute any such assignment until
such time as all Indebtedness secured hereby is fully paid and satisfied.
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13
G. Mortgagor agrees that no holder of any subordinate lien shall
have any right to terminate any lease of any portion of the Premises whether or
not such lease is subordinate to this Mortgage.
17. TRANSFER OF MORTGAGOR'S INTEREST. Except to the extent
provided in the Loan Agreement, it shall be an Event of Default hereunder if,
without Mortgagee's prior written consent, Mortgagor shall at any time cease to
be the holder of the entire record title to and beneficial interest in the
Premises or any part thereof, whether by sale or any other means whatsoever, or
any lien or encumbrance is placed upon the Premises, even if inferior hereto,
or Mortgagor executes any contract of sale or transfers possession of the
Premises or any part thereof or assigns the right to receive the rents.
18. SECURITY AGREEMENT/FINANCING STATEMENT. This Mortgage is a
mortgage, security agreement, fixture filing and financing statement under the
Uniform Commercial Code. This instrument is also to be indexed in the index of
fixture filings and financing statements. This instrument covers goods which
are or are to become fixtures on the Premises. The names of the debtor and the
secured party, the mailing address of the secured party from which information
concerning this security interest may be obtained, the mailing address of the
debtor and a statement indicating the types, or describing the items, of
collateral, are as described herein, in compliance with the requirements of the
Uniform Commercial Code. The Mortgagor's taxpayer identification number is
36-156137. A copy of this Mortgage may be filed as a financing statement.
19. CUMULATIVE REMEDIES. Each and every one of the rights,
remedies and benefits provided to Mortgagee herein or in any other Document
shall be separate, distinct and cumulative and shall not be exclusive of any
other of said rights, remedies or benefits, or of any other rights, remedies or
benefits allowed by law. Any waiver by Mortgagee of any default shall not
constitute a waiver of any similar or other default. No act of the Mortgagee
shall be construed as an election to proceed under any one provision herein to
the exclusion of any other provision.
20. BINDING EFFECT. All of the covenants and conditions hereof
shall run with the land and shall be binding upon the successors and assigns of
Mortgagor, and shall inure to the benefit of the successors and assigns of
Mortgagee. Any reference herein to "Mortgagee" and "Mortgagor" shall include
the successors and assigns of each.
21. SEVERABILITY. The invalidity of any of the covenants, phrases
or clauses in this Mortgage shall not affect the remaining portions hereof, and
this Mortgage shall be construed as if such invalid covenant, phrase or clause
had not been contained herein.
22. JOINT AND SEVERAL LIABILITY. If Mortgagor consists of more
than one party, the term "Mortgagor" shall include all such parties and they
shall be jointly and severally liable under any and all obligations, covenants
and agreements of the Mortgagor contained herein.
23. MORTGAGOR'S CERTIFICATE. Mortgagor, upon Mortgagee's request,
shall certify, by a writing duly acknowledged, to the Mortgagee or to any
proposed assignee of this Mortgage,
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the amount of the Indebtedness then owing and whether any offsets,
counterclaims or defenses exist against the Indebtedness, within ten (10) days
after the request is made.
24. NOTICE. Any notice hereunder shall be sufficient if made in
writing and delivered to Mortgagor by mail to Frank's Nursery & Crafts, Inc.,
0000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 and shall be deemed made and
delivered two (2) business day after deposit thereof in the mails, postage
paid.
25. EFFECT OF HEADINGS. The headings of each paragraph are
descriptive only and have no legal effect.
26. GOVERNING LAW. This Mortgage shall be governed by and
construed and interpreted in accordance with the laws of the State of Michigan.
27. RELEASE. Upon payment in full of the obligations and
liabilities under the Loan Agreement and the Documents (defined therein) and,
if later, the date of all of Mortgagee's commitments to lend thereunder are
terminated, Mortgagee shall provide Mortgagor with a discharge and release
hereof in recordable form.
[SIGNATURES ON NEXT PAGE]
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In the Presence of: FRANK'S NURSERY & CRAFTS, INC.
[SIG] By: Xxxxxx X. Xxxxxxx Xx.
------------------------------- --------------------------------
[SIG] Xxxxxx X. Xxxxxxx Xx.
------------------------------- Its: Vice-President
STATE OF MICHIGAN )
: ss.
COUNTY OF Xxxxx )
The foregoing instrument was acknowledged before me this 29th day of
November 1996, by Xxxxxx X. Xxxxxxx Xx., as Vice-President of FRANK'S NURSERY &
CRAFTS, INC., a Michigan corporation, on behalf of said corporation.
Xxxxx X. Xxxxx
-------------------------------
Notary Public, ______________ County, Michigan
My Commission Expires: ____________________
Drafted by and when recorded return to:
Xxxxx X. XxXxxx, Esq.
Miller, Canfield, Paddock and Stone
000 Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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EXHIBIT "A"
LEGAL DESCRIPTION
Lots 27 through 52 and the East 5 feet of Lot 53, of XXXX'X DEARBORN
HILLS ANNEX SUBDIVISION of part of the southwest 1/4 of Section 20, and
part of the Xxxxxxxxx 0/0 xx Xxxxxxx 00, Xxxx 0 Xxxxx, Xxxxx 10 East, Village
of Xxxxxxx, Xxxxx County, Michigan, as recorded in liber 72, pages 14 and 15 of
Plats, Xxxxx County Records
17
EXHIBIT B
---------
PERMITTED ENCUMBRANCES
----------------------
Covenants, conditions and restrictions and other provisions but omitting
restrictions, if any, based on race, color, religion, sex, handicap, familial
status or national origin as contained in instrument recorded in liber 10507,
page 000, Xxxxxxxx Xx. X000000, Xxxxx Xxxxxx Records.
18
[LOGO]
ISSUED BY
COMMONWEALTH LAND TITLE INSURANCE COMPANY COMMITMENT FOR TITLE INSURANCE
--------------------------------------------------------------------------------
COMMONWEALTH 96-09-0224 Dearborn Heights, MI
Xxxxx County
Store #5 Frank's Nursery
COMMONWEALTH LAND TITLE INSURANCE COMPANY, a Pennsylvania Corporation,
hereby agrees to issue a policy of title insurance as herein before set forth
upon satisfactory compliance with the requirements herein set forth and upon
payment of the prescribed premium. If any requirement is not satisfied, the
title policy will be issued subject to the exceptions which would otherwise be
eliminated by compliance with such requirement. The policy will also contain
exceptions as to matters affecting the title to subject property which may
arise after the date hereof and which have not been eliminated to our
satisfaction. all policies are subject to the printed conditions contained in
the policy form. Owners' and Mortgage Policies With Exceptions will be issued
with standard exceptions as shown herein.
If, at the time the final policy is issued, the estate or interest of
the insured in the real estate described herein is created or evidenced by
instruments any one of which has not been recorded in the office of the
Register of Deeds of the county in which the land is located, the policy to be
issued will contain a clause providing that there shall be no liability
thereunder to the extent that loss or damage arises from the failure to record
the instrument or instruments necessary to evidence such estate or interest.
PROVISIONS APPLICABLE TO ALL COMMITMENTS:
This Commitment is delivered and accepted upon the understanding that
the party to be insured has no personal knowledge or intimation of any defect,
objection, lien or encumbrance affecting subject property other than those set
forth herein and in the title insurance application. Failure to disclose such
information shall render this Commitment and any policy issued pursuant
thereto, null and void as to such defect, objection, lien or encumbrance.
Unless otherwise stated, building and use restrictions are not accompanied by a
right of reverter.
All clauses, if any which indicate any preference, limitation or
discrimination based on race, color, religion or national origin are omitted
from all building and use restrictions, if any shown herein.
This Commitment shall not be valid or binding until is countersigned by
an authorized signatory on page one.
IN WITNESS WHEREOF, COMMONWEALTH LAND TITLE INSURANCE COMPANY has
caused its corporate name and seal to be hereunto affixed by its duly
authorized officers as of the date shown on page one.
COMMONWEALTH LAND TITLE INSURANCE COMPANY
[COMMONWEALTH LAND TITLE INSURANCE COMPANY SEAL]
Attest: Xxxxx X. X. Xxxxx Xx. By: [SIG]
Secretary President
Form 2074-1 (Michigan)
19
Prepared by:
Commonwealth Land Title Ins. Company
000 Xxxxxxxx Xxxxx 00000 Xxxxxxxx Xx., Xxx 000
Xxxxx 000 Xxxxxxx, Xxxxxxxx 00000
Xxxx, Xxxxxxxx 00000 (000)000-0000
(000)000-0000 (Troy)
(000)000-0000 (Pontiac)
(000)000-0000 (Detroit) File No. E053383
COMMITMENT FOR TITLE INSURANCE
EFFECTIVE DATE: November 29, 1996 NTS No. 96-09-0224
This commitment is valid and binding for a period of only 90 days from
effective date hereof.
FORM OF POLICY TO BE ISSUED:
A.L.T.A. OWNERS POLICY Amount $ .00
PROPOSED INSURED:
A.L.T.A. LOAN POLICY Amount $ 1,200,000.
(Without Exceptions)
INSURED:
COMERICA BANK
DESCRIPTION OF REAL ESTATE
The Land referred to in this Commitment is located in the City of Dearborn
Heights, Xxxxx County, Michigan, and described as follows:
SEE ATTACHED RIDER
Tax I.D. No. 036-02-0027-000.
Tax I.D. No. 036-02-0049-000.
Tax I.D. No. 036-02-0053-001.
OWNER, ENCUMBRANCES, EXCEPTIONS TO TITLE, UNPAID TAXES
AND REQUIREMENTS FOR ISSUANCE OF POLICY
1. Owner: Frank's Nursery & Crafts, Inc., a Michigan Corporation
Commitment (MI)
Form 2074-8
20
"RIDER"
INCLUDED IN AND FORMING PART OF THE COMMONWEALTH LAND TITLE INSURANCE
COMPANY FILE NO. E053383.
DESCRIPTION OF REAL ESTATE
Lots 27 through 52 and the East 5 feet of Lot 53, of XXXX'X DEARBORN
HILLS ANNEX SUBDIVISION of part of the Southwest 1/4 of Section 20, and
part of the Xxxxxxxxx 0/0 xx Xxxxxxx 00, Xxxx 0 Xxxxx, Xxxxx 10 East,
Village of Xxxxxxx, Xxxxx County, Michigan, as recorded in liber 72,
pages 14 and 15 of Plats, Xxxxx County Records
21
RIDER ATTACHED TO AND MADE PART OF COMMITMENT NO. E053383
REQUIREMENT: RECORD DISCHARGE.
6. Covenants, conditions and restrictions and other provisions but
omitting restrictions, if any, based on race, color, religion, sex,
handicap, familial status or national origin as contained in
instrument recorded in liber 10507, page 000, Xxxxxxxx Xx. X000000,
Xxxxx Xxxxxx Records.
"NOTE:" Item (d) under Standard Exceptions of commitment jacket is
hereby amended to read as follows:
(d) Restrictions and Easements and Claims of Easement not shown on
record.
10. Liens for any tax and/or assessment which become due and payable on or
after the effective date of this Commitment.
"NOTE": ALL OF THE ABOVE ITEMS WILL BE SHOWN ON FINAL POLICY UNLESS ELIMINATED
TO OUR SATISFACTION.
Countersigned by: [SIG]
-----------------------------
Authorized Officer or Agent
"NOTE:" This Commitment consists of 5 pages. Please call if all pages are
not included.
11. Encroachment of adjoining roof onto subject property to the extent of
1.8 foot and encroachment of concrete walk into public alley to the
extent of 5.8 feet as disclosed by survey prepared by MH Consulting
Service Inc. dated September 15, 1995, updated November 21, 1996 and
identified as Job No. 95-799.
22
REQUIREMENTS FOR ISSUANCE OF MORTGAGE POLICIES
1. ALL MORTGAGE POLICIES
(a) Estoppel certificate on form provided by this Company and signed by
or on behalf of all mortgagors.
2. ALTA MORTGAGE POLICIES WITHOUT EXCEPTIONS
(a) Proper sworn statements and waivers showing payments or release of
lien rights covering improvements made on subject land in the last
90 days or satisfactory proof that no improvements have been made
within the last 90 days.
(b) Satisfactory survey by an approved surveyor showing no variation
in location or dimensions, encroachments, or adverse rights, and
such evidence of possession as may be required.
STANDARD EXCEPTIONS
Owners Policies
Exceptions (a), (b) and (c) under "Mortgagee Policies with Exceptions".
(d) Restrictions and Easements and Claims of Easement now shown of record.
(e) Taxes or special assessments which are not shown as existing liens by the
public records.
(f) Rights of Dower, homestead or other marital rights of the spouse, if any,
of any individual insured.
(g) Existing water, mineral, oil and exploitation rights which are not of
record.
REQUIREMENTS: 1) If this commitment contains specific requirements please
notify us when they have been complied with, and the
policy will be issued subject to the requirements below.
2) All of these items or matters shown in this Commitment will
be shown on the final policy unless eliminated to our
satisfaction.
NOTE: VALID ONLY WHEN COUNTERSIGNED BY A DULY AUTHORIZED OFFICER OR AGENT.
B-2074-1 (12-88)
23
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COMMITMENT FOR TITLE INSURANCE (MICHIGAN)
ISSUED BY
COMMONWEALTH LAND TITLE INSURANCE COMPANY
[LOGO] COMMONWEALTH
TITLE INSURANCE SINCE 1876
HOME XXXXXX
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