EXHIBIT 10.56
COMMERCIAL MORTGAGE
AFTER RECORDING, RETURN TO: PREPARED BY:
Xxxx Bank, S.S. B. Jenkens & Xxxxxxxxx
0000 Xxxxxx Xxxxx 0000 Xxxx Xxxxxx, Xxxxx 0000
0 Xxxx Xxxxxx, Xxxxx 00000-0000
Plano, Texas 75024 Attn: Xxxxxxxx X. Xxxxx, Esq.
Attn: Xxxxxxx X. Xxxxxxxxxx
================================================================================
[Clerk's Recording Information]
THIS IS A FUTURE ADVANCE MORTGAGE UNDER ACT 348 OF THE MICHIGAN PUBLIC ACTS OF
1990, AS AMENDED.
THIS COMMERCIAL MORTGAGE (herein this "Instrument") is made effective as of
July 10, 2002, by the Mortgagor, MONROE OUTLET CENTER, LLC, a Michigan limited
liability company, whose address xx00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000 (herein "Borrower"), in favor of and for the benefit of
Mortgagee, XXXX BANK, S.S.B., a savings bank organized under the laws of the
State of Texas, whose address is 0000 Xxxxxx Xxxxx, 0 Xxxx, Xxxxx, Xxxxx 00000
(herein "Xxxx").
Borrower, in consideration of the indebtedness herein recited, irrevocably
mortgages and warrants, grantsand conveys to Xxxx, WITH POWER OF SALE, all of
Borrower's estate, right, title and interest, now owned or hereafter acquired,
including any reversion or remainder interest, in the real property located in
Monroe County, Michigan, more particularly described on EXHIBIT A attached
hereto and incorporated herein, including all heretofore or hereafter vacated
alleys and streets abutting the property, and all easements, rights,
appurtenances, tenements, hereditaments, rents, royalties, mineral, oil and gas
rights and profits, water, water rights, and water stock appurtenant to the
property (collectively, the "Premises");
TOGETHER with all of Xxxxxxxx's estate, right, title and interest, now
owned or hereafter acquired, in:
(1) all buildings, structures, improvements, parking areas, landscaping,
equipment, fixtures and articles of property now or hereafter erected on,
attached to, or used or adapted for use in the operation of the Premises;
including but without being limited to, all heating, air conditioning and
incinerating apparatus and equipment; all boilers, engines, motors, dynamos,
generating equipment, piping and plumbing fixtures, water heaters, ranges,
cooking apparatus and mechanical kitchen equipment, refrigerators, freezers,
cooling, ventilating, sprinkling and vacuum cleaning systems, fire extinguishing
apparatus, gas and electric fixtures, carpeting, floor coverings,
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underpadding, elevators, escalators, partitions, mantels, built-in mirrors,
window shades, blinds, draperies, screens, storm sash, awnings, signs,
furnishings of public spaces, halls and lobbies, and shrubbery and plants, and
including also all interest of any owner of the Premises 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 clause (a) shall be deemed part of the realty covered by this Instrument
and not severable wholly or in part without material injury to the freehold of
the Premises (all of the foregoing together with replacements and additions
thereto are referred to herein as "Improvements"); and
(2) all compensation, awards, damages, rights of action and proceeds,
including interest thereon and/or the proceeds of any policies of insurance
therefor, arising out of or relating to a (i) taking or damaging of all or any
part of the Premises or the Improvements thereon by reason of any public or
private improvement, condemnation proceeding (including change of grade), sale
or transfer in lieu of condemnation, or fire, earthquake or other casualty, or
(ii) any injury to or decrease in the value of the Premises or the Improvements
for any reason whatsoever; and
(3) return premiums or other payments upon any insurance any time provided
for the benefit of or naming Xxxx, and refunds or rebates of taxes or
assessments on all or any part of the Premises; and
(4) all the right, title and interest of Borrower in, to and under all
written and oral leases and rental agreements (including extensions, renewals
and subleases; all of the foregoing shall be referred to collectively herein as
the "Leases") now or hereafter affecting all or any part of the Premises
including, without limitation, all rents, issues, profits and other revenues and
income therefrom and from the renting, leasing or bailment of all or any part of
the Improvements and equipment, all guaranties of tenants' performance under the
Leases, and all rights and claims of any kind that Borrower may have against any
tenant under the Leases or in connection with the termination or rejection of
the Leases in a bankruptcy or insolvency proceeding; and the leasehold estate in
the event this Instrument is on a leasehold; and
(5) plans, specifications, contracts and agreements relating to the design
or construction of all or any part of the Improvements; Borrower's rights under
any payment, performance, or other bond in connection with the design or
construction of all or any part of the Improvements; all landscaping and
construction materials, supplies, and equipment used or to be used or consumed
in connection with construction of the Improvements, whether stored on the
Premises or at some other location; and contracts, agreements, and purchase
orders with contractors, subcontractors, suppliers, and materialmen incidental
to the design or construction of all or any part of the Improvements; and
(6) all contracts, accounts, rights, claims or causes of action pertaining
to or affecting all or any part of the Premises or the Improvements, including,
without limitation, all options or contracts to acquire other property for use
in connection with operation or development of all or any part of the Premises
or the Improvements, management contracts, service or supply contracts,
deposits, bank accounts, general intangibles (including without limitation
trademarks, trade names and symbols), permits, licenses, franchises and
certificates, and all commitments or agreements, now or hereafter in existence,
intended by the obligor thereof to provide Borrower with proceeds to satisfy
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the loan evidenced hereby or improve all or any part of the Premises or the
Improvements, and the right to receive all proceeds due under such commitments
or agreements including refundable deposits and fees (the term "general
intangibles" as used in this paragraph shall have the meaning given such term in
the Uniform Commercial Code-Secured Transactions of the state where the Premises
is located); and
(7) all books, records, surveys, reports and other documents related to
all or any part of the Premises, the Improvements, the Leases, or other items of
collateral described herein; and
(8) all additions, accessions, replacements, substitutions, proceeds and
products of the real and personal property, tangible and intangible, described
herein.
All of the foregoing described collateral is exclusive of any furniture,
furnishings or trade fixtures owned and supplied by tenants of the Premises. The
Premises, the Improvements, the Leases and all of the rest of the foregoing
property are herein referred to as the "Property."
TO SECURE TO Xxxx (a) the repayment of the indebtedness evidenced by (i)
that certain Promissory Note I, in the stated principal amount of $3,000,000.00
and (ii) that certain Promissory Note II, in the stated principal amount of
$4,000,000.00, each dated of even date herewith, each executed by Borrower and
each payable to the order of Xxxx, with interest thereon as set forth therein,
and all renewals, extensions and modifications of either thereof (herein
individually, a "Note", and collectively, the "Notes"), and with a final
maturity date of July 10, 2005 (the "Maturity Date"); (b) the repayment of any
future advances, with interest thereon, made by Xxxx to Borrower pursuant to
SECTION 29 hereof (herein "Future Advances"); (c) the payment of all other sums,
with interest thereon, advanced in accordance herewith to protect the security
of this Instrument or to fulfill any of Borrower's obligations hereunder or
under the other Loan Documents (as defined below); (d) the performance of the
covenants and agreements of Borrower contained herein or in the other Loan
Documents; (e) the repayment of all sums now or hereafter owing to Xxxx by
Borrower pursuant to any instrument which recites that it is secured hereby; and
(f) the repayment of all other sums now or hereafter owing to Xxxx by Borrower
(the indebtedness described in clause (f) is collectively called the "Other
Loans"). The indebtedness and obligations described in clauses (a)-(f) above are
collectively referred to herein as the "Indebtedness." The Notes, this
Instrument, and all other documents evidencing, securing or guarantying the
Indebtedness, as the same may be modified or amended from time to time,
including, without limitation, that certain Commercial Mortgage, of even date
herewith, executed by Borrower for the benefit of Xxxx and encumbering certain
property located in Muskegon County, Michigan, that certain Collateral
Assignment of Sales Contracts, of even date herewith, executed by Borrower for
the benefit of Xxxx, that certain letter agreement concerning post closing
matters, of even date herewith, by and between Borrower and Xxxx, that certain
Assignment of Landlord's Interest in Leases (the "Lease Assignment"), of even
date herewith, executed by Borrower for the benefit of Xxxx, that certain
Guaranty Agreement, of even date herewith, executed by Horizon Group Properties,
Inc., Horizon Group Properties, L.P. and Prime Retail, L.P. for the benefit of
Xxxx, and that certain Collateral Assignment, of even date herewith, executed by
Horizon Group Properties, L.P. for the benefit of Xxxx, are referred to herein
as the "Loan Documents." The terms of the Notes secured hereby provide that the
interest rate or payment terms or balance due may be indexed, adjusted, renewed,
or renegotiated from time to time, and this
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Instrument shall continue to secure the Notes notwithstanding any such indexing,
adjustment, renewal or renegotiation.
Borrower represents and warrants that Borrower has good, marketable and
insurable title to, and has the right to mortgage an indefeasible fee simple
estate in, the Premises, Improvements, rents and leases (or, if this Instrument
is on a leasehold, good, marketable and insurable title to, and the right to
convey and mortgage the leasehold estate and that the ground lease is in full
force and effect without modification except as noted above and without default
on the part of either lessor or lessee thereunder), and the right to convey and
mortgage the other Property, that the Property is unencumbered except for the
matters set forth on EXHIBIT B attached to and made a part of this Instrument
(the "Permitted Encumbrances"), and that Borrower will warrant and forever
defend unto Xxxx the title to the Property against all claims and demands,
subject only to the Permitted Encumbrances set forth in EXHIBIT B attached
hereto.
Xxxxxxxx represents, warrants, covenants and agrees for the benefit of Xxxx
as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall promptly pay when
due the principal of and interest on the Indebtedness, any prepayment and other
charges provided in the Loan Documents and all other sums secured by this
Instrument.
2. FUNDS FOR TAXES, INSURANCE AND OTHER CHARGES. At Xxxx'x sole option,
Borrower shall pay to Xxxx on or before the first day of each month, in addition
to each monthly payment on the Notes, one-twelfth (1/12) of the annual real
estate taxes, insurance premiums, assessments, water and sewer rates, ground
rents and other charges (herein "Impositions") payable with respect to the
Property (as estimated by Xxxx in its sole discretion), to be held by Xxxx in an
interest bearing account, for the payment of any Impositions.
If the amount of such additional payments held by Xxxx ("Funds") at the
time of the annual accounting thereof shall exceed the amount deemed necessary
by Xxxx to provide for the payment of Impositions as they fall due, such excess
shall be at Borrower's option, either repaid to Borrower or credited to Borrower
on the next monthly installment or installments of Funds due. If at any time the
amount of the Funds held by Xxxx shall be less than the amount deemed necessary
by Xxxx to pay Impositions as they fall due, Borrower shall pay to Xxxx any
amount necessary to make up the deficiency within thirty (30) days after notice
from Xxxx to Borrower requesting payment thereof.
Upon the occurrence of and during the continuance of any Event of Default,
Xxxx may apply, in any amount and in any order as Xxxx shall determine in Xxxx'x
sole discretion, any Funds held by Xxxx at the time of application (a) to pay
Impositions which are now or will hereafter become due, or (b) as a credit
against sums secured by this Instrument. Upon payment in full of all sums
secured by this Instrument, Xxxx shall refund to Borrower any Funds held by
Xxxx.
3. APPLICATION OF PAYMENTS. Unless applicable law provides otherwise,
each complete installment payment received by Xxxx from Borrower under either
Note or this Instrument shall be applied by Xxxx first in payment of amounts
payable to Xxxx by Borrower under SECTION 2 hereof, then to interest payable on
the Notes, then to principal of the Notes (on a pro rata basis based
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on the respective principal balances of each Note compared to the aggregate
principal balance of both Notes), and then to interest and principal on any
Future Advances in such order as Xxxx, at Xxxx'x sole discretion, shall
determine; provided, however, upon the occurrence and during the continuance of
any Event of Default, Xxxx may apply, in any amount and in any order as Xxxx
shall determine in Xxxx'x sole discretion, any payments received by Xxxx under
either Note, this Instrument or any other Loan Document.
4. CHARGES, LIENS. Borrower shall pay all Impositions attributable to the
Property in the manner provided under SECTION 2 hereof or, if not paid in such
manner, by Borrower making payment, before same shall become delinquent or
subject to interest or other charge, directly to the payee thereof, or in such
other manner as Xxxx may designate in writing. If requested by Xxxx, Borrower
shall promptly furnish to Xxxx all notices of Impositions which become due, and
in the event Borrower shall make payment directly, Borrower shall promptly
furnish to Xxxx receipts evidencing such payments. Borrower shall promptly
discharge any lien which has, or may have, priority over or equality with, the
lien of this Instrument, and Borrower shall pay, when due, the claims of all
persons supplying labor or materials to or in connection with the Property.
Without Xxxx'x prior written consent, which may be granted or withheld at the
sole discretion of Xxxx, Borrower shall not allow any lien other than this
Instrument to be perfected against any of the Property. If any lien other than
this Instrument is filed against any of the Property without Xxxx'x prior
written consent and without the consent of Xxxxxxxx, Borrower shall, within
thirty (30) days after receiving notice of the filing of such lien, cause such
lien to be released of record and deliver evidence of such release to Xxxx.
5. INSURANCE. Borrower shall obtain and maintain the following types of
insurance upon and relating to the Property:
(1) "All Risk" property and fire insurance (with extended coverage
endorsement including malicious mischief and vandalism) in an
amount not less than the full replacement value of the Property
(with a deductible not to exceed $10,000), naming Xxxx under a
lender's loss payee endorsement (form 438BFU or equivalent) and
including agreed amount, inflation guard, replacement cost and
waiver of subrogation endorsements;
(2) Comprehensive general liability insurance in an amount not less
than $2,000,000.00 insuring against personal injury, death and
property damage and naming Xxxx as additional insured;
(3) Business interruption insurance covering loss of rental or
other income (including all expenses payable by tenants) for up
to twelve (12) months; and
(4) Such other types of insurance or endorsements to existing
insurance as may be required from time to time by Xxxx in the
exercise of its reasonable business judgment.
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Upon each request of Xxxx, in the exercise of its reasonable business
judgment, Borrower shall increase the coverages under any of the insurance
policies required to be maintained hereunder or otherwise modify such policies
in accordance with Xxxx'x request. All of the insurance policies required
hereunder shall be issued by corporate insurers licensed to do business in the
state in which the Property is located and rated A:X or better by A.M. Best
Company, and shall be in form acceptable to Xxxx. If and to the extent that the
Property is located within an area that has been or is hereafter designated or
identified as an area having special flood hazards by the Department of Housing
and Urban Development or such other official as shall from time to time be
authorized by federal or state law to make such designation pursuant to any
national or state program of flood insurance, Borrower shall carry flood
insurance with respect to the Property in amounts not less than the maximum
limit of coverage then available with respect to the Property or the amount of
the Indebtedness, whichever is less. Certificates of all insurance required to
be maintained hereunder shall be delivered to Xxxx, along with evidence of
payment in full of all premiums required thereunder, contemporaneously with
Xxxxxxxx's execution of this Instrument. All such certificates shall be in form
acceptable to Xxxx and shall require the insurance company to give to Xxxx at
least thirty (30) days' prior written notice before canceling the policy for any
reason or materially amending it. Certificates evidencing all renewal and
substitute policies of insurance shall be delivered to Xxxx, along with evidence
of the payment in full of all premiums required thereunder, at least thirty (30)
days before termination of the policies being renewed or substituted. If any
loss shall occur at any time when Borrower shall be in default hereunder, Xxxx
shall be entitled to the benefit of all insurance policies held or maintained by
Borrower, to the same extent as if same had been made payable to Xxxx, and upon
foreclosure hereunder, Xxxx shall become the owner thereof. Xxxx shall have the
right, but not the obligation, to make premium payments, at Borrower's expense,
to prevent any cancellation, endorsement, alteration or reissuance of any policy
of insurance maintained by Xxxxxxxx, and such payments shall be accepted by the
insurer to prevent same.
If any act or occurrence of any kind or nature (including any casualty for
which insurance was not obtained or obtainable) shall result in damage to or
destruction of the Property (such event being called a "Loss"), Borrower will
give prompt written notice thereof to Xxxx. All insurance proceeds paid or
payable in connection with any Loss shall be paid to Xxxx. If (i) no Event of
Default has occurred and is continuing hereunder, (ii) Borrower provides
evidence satisfactory to Xxxx of its ability to pay all amounts becoming due
under the Notes during the pendency of any restoration or repairs to or
replacement of the Property, (iii) the available insurance proceeds are, in
Xxxx'x judgment, sufficient to fully and completely restore, repair or replace
the Property and (iv) Borrower provides evidence satisfactory to Xxxx that no
more than an immaterial number of the tenants of the Property (as determined by
Xxxx in the exercise of its reasonable business judgment) will terminate their
lease agreements as a result of either the Loss or the repairs to or replacement
of the Property, Borrower shall have the right to apply all insurance proceeds
received in connection with such Loss either (a) to restore, repair, replace and
rebuild the Property as nearly as possible to its value, condition and character
immediately prior to such Loss (and if Borrower elects to so use the proceeds,
they will be held by Xxxx and funded as work is completed upon satisfaction of
such conditions relating thereto as Xxxx shall require), or (b) subject to the
restrictions on prepayment set forth in the Notes, to the payment of the
Indebtedness in such order as Xxxx may elect. If an Event of Default has
occurred and is continuing hereunder at the time of such Loss, or if Xxxx
determines that Borrower will be unable to pay all amounts becoming due under
the Note during the pendency of any
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restoration or repairs to or replacement of the Property, or if the available
insurance proceeds are insufficient, in Xxxx'x judgment, to fully and completely
restore, repair or replace the Property, or if Xxxx believes that a material
number of the tenants of the Property (as determined by Xxxx in the exercise of
its reasonable business judgment) will terminate their lease agreements as a
result of either the Loss or the repairs to or replacement of the Property, then
all of the insurance proceeds payable with respect to such Loss will be applied
to the payment of the Indebtedness, or if so instructed by Xxxx, Borrower will
promptly, at Borrower's sole cost and expense and regardless of whether
sufficient insurance proceeds shall be available, commence to restore, repair,
replace and rebuild the Property as nearly as possible to its value, condition,
character immediately prior to such Loss. Borrower shall diligently prosecute
any restoration, repairs or replacement of the Property undertaken by or on
behalf of Borrower pursuant to this SECTION 5. All such work shall be conducted
pursuant to written contracts approved by Xxxx in writing. Notwithstanding
anything contained herein to the contrary, in the event the insurance proceeds
received by Xxxx following any Loss are insufficient in Xxxx'x judgment to fully
and completely restore, repair or replace the Property, and if Borrower has
complied with all of the other conditions described in this SECTION 5, Borrower
may elect to restore, repair or replace the Property if it first deposits with
Xxxx such additional sums as Xxxx determines are necessary in order to fully and
completely restore, repair or replace the Property. In the event any insurance
proceeds remain following the restoration, repair or replacement of the
Property, such proceeds shall be applied to the Indebtedness in such order as
Xxxx may elect.
6. PRESERVATION AND MAINTENANCE OF THE PROPERTY; LEASEHOLDS. Borrower (a)
shall not commit waste or permit impairment or deterioration of the Property,
(b) shall not abandon the Property, (c) shall restore or repair promptly and in
a good and workmanlike manner all or any part of the Property to the equivalent
of its original condition, or such other condition as Xxxx may approve in
writing, in the event of any damage, injury or loss thereto, whether or not
insurance proceeds are available to cover, in whole or in part, the costs of
such restoration or repair, (d) shall keep the Property, including all
improvements, fixtures, equipment, machinery and appliances thereon, in good
repair and shall replace fixtures, equipment, machinery and appliances on the
Property when necessary to keep such items in good repair, and shall not
construct or modify any improvements of a material nature on any of the Property
without the prior written consent of Xxxx, (e) shall comply with all laws,
ordinances, regulations and requirements of any governmental body applicable to
the Property, (f) if all or part of the Property is for rent or lease, then
Xxxx, at its option after the occurrence of an Event of Default, may require
Borrower to provide for professional management of the Property by a property
manager satisfactory to Xxxx pursuant to a contract approved by Xxxx in writing,
unless such requirement shall be waived by Xxxx in writing, (g) shall generally
operate and maintain the Property in a manner to ensure maximum rentals, and (h)
shall give notice in writing to Xxxx of and, unless otherwise directed in
writing by Xxxx, appear in and defend any action or proceeding purporting to
affect the Property, the security of this Instrument or the rights or powers of
Xxxx hereunder. Neither Borrower nor any tenant or other person, without the
written approval of Xxxx, shall remove, demolish or alter any Improvement now
existing or hereafter erected on the Property or any fixture, equipment,
machinery or appliance in or on the Property except when incident to the
replacement of fixtures, equipment, machinery and appliances with items of like
kind.
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Borrower represents, warrants and covenants that the Property is and shall
remain in compliance with the Americans with Disabilities Act of 1990, all
similar State of Michigan laws, all similar local codes and ordinances and all
of the regulations promulgated under or in regard to any thereof, as the same
may be amended from time to time.
If this Instrument is on a leasehold, Borrower (i) shall comply with the
provisions of the ground lease, (ii) shall give immediate written notice to Xxxx
of any default by lessor under the ground lease or of any notice received by
Borrower from such lessor of any default by Borrower under the ground lease,
(iii) shall exercise any option to renew or extend the ground lease and give
written confirmation thereof to Xxxx within thirty (30) days after such option
becomes exercisable, (iv) shall give immediate written notice to Xxxx of the
commencement of any remedial proceedings under the ground lease by any party
thereto and, if required by Xxxx, shall permit Xxxx to control and act for
Xxxxxxxx as Xxxxxxxx's attorney-in-fact in any such remedial proceedings and (v)
shall within thirty (30) days after request by Xxxx obtain from the lessor under
the ground lease and deliver to Xxxx a lessor's estoppel certificate in form and
substance acceptable to Xxxx. Borrower hereby expressly transfers and assigns to
Xxxx the benefit of all covenants contained in the ground lease, whether or not
such covenants run with the land, but Xxxx shall have no liability with respect
to such covenants or any other covenants contained in the ground lease.
Xxxxxxxx shall neither surrender the leasehold estate or interests herein
conveyed nor terminate or cancel the ground lease creating said estate and
interests, and Borrower shall not, without the express written consent of Xxxx,
alter or amend said ground lease. There shall not be a merger of the ground
lease, or of the leasehold estate created thereby, with the fee estate covered
by the ground lease by reason of said leasehold estate or said fee estate, or
any part of either, coming into common ownership, unless Xxxx shall consent in
writing to such merger; if Borrower shall acquire such fee estate, then this
Instrument shall simultaneously and without further action be spread so as to
become a lien on such fee estate.
Notwithstanding anything contained herein to the contrary, failure of
Borrower to pay any taxes, assessments or governmental charges levied or
assessed against the Property, or any part thereof, or any installment of any
such tax, assessment or charge, or any premium upon any such tax, assessment or
charge, or any premium upon any policy of insurance covering any part of the
Property, at the time or times such taxes, assessments, charges, installments
thereof or insurance premiums are due and payable, shall constitute waste, and
an Event of Default, and in accordance with the provisions of Act No. 236 of the
Public Acts of Michigan for 1961, as amended, shall entitle Xxxx to exercise the
remedies afforded by such Act. Payment by Xxxx for and on behalf of Borrower of
any such delinquent tax or insurance premium properly payable by Xxxx under the
terms of this Instrument, shall not cure the Event of Default herein described
nor shall it in any manner impair Xxxx'x right to the appointment of a receiver
on account thereof. Upon the happening of any such acts of waste and on proper
application made therefor by Xxxx to a court of competent jurisdiction, Xxxx
shall forthwith be entitled to the appointment of a receiver of the Property and
of the earnings, income, issues and profits thereof, with such powers as the
court making such appointment shall confer; Borrower hereby irrevocably consents
to such appointment and waives notice of any application therefor.
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7. USE OF PROPERTY. Unless required by applicable law or unless Xxxx has
otherwise agreed in writing, Borrower shall not allow changes in the use for
which all or any part of the Property was intended at the time this Instrument
was executed. Borrower shall not, without Xxxx'x prior written consent, which
may be granted or withheld at the sole discretion of Xxxx, (a) initiate or
acquiesce in a change in the zoning classification (including any variance under
any existing zoning ordinance applicable to any of the Property), (b) permit the
use of any of the Property to become a non-conforming use under applicable
zoning ordinances, (c) file any subdivision or parcel map affecting the
Property, (d) consent to or effect the annexation of any of the Property to any
city or other governmental unit or (e) amend, modify, consent to or file or
record any easement, covenants, conditions or restrictions pertaining to any of
the Property.
8. PROTECTION OF XXXX'X SECURITY. If Borrower fails to perform any of the
covenants and agreements contained in this Instrument, or if any action or
proceeding is commenced which affects the Property or title thereto or the
interest of Xxxx therein, including, but not limited to, eminent domain,
insolvency, code enforcement, or arrangements or proceedings involving a
bankrupt or decedent, then Xxxx, at Xxxx'x, option may make such appearances,
disburse such sums and take such action as Xxxx deems necessary, in its sole
discretion, to protect Xxxx'x interest, including, but not limited to, (a)
disbursement of attorneys' fees, (b) entry upon the Property to make repairs,
(c) procurement of satisfactory insurance as provided in SECTION 5 hereof, (d)
exercise all rights and remedies available as the result of the occurrence of
any Event of Default, and/or (e) if this Instrument is on a leasehold, exercise
of any option to renew or extend the ground lease on behalf of Borrower and the
curing of any default of Borrower in the terms and conditions of the ground
lease.
Any amounts disbursed by Xxxx pursuant to this SECTION 8, with interest
thereon, shall become additional Indebtedness of Borrower secured by this
Instrument. Unless Borrower and Xxxx agree to other terms of payment, such
amounts shall be immediately due and payable and shall bear interest from the
date of disbursement at the Default Rate set forth in the Notes. Borrower hereby
covenants and agrees that Xxxx shall be subrogated to the lien of any mortgage
or other lien discharged, in whole or in part, by the Indebtedness. Nothing
contained in this SECTION 8 shall require Xxxx to incur any expense or take any
action hereunder.
9. INSPECTION. Xxxx may from time to time make or cause to be made
entries upon the Property to inspect the interior and exterior thereof; however,
Xxxx will use reasonable efforts not to unreasonably interfere with the
activities of tenants of the Property.
10. FINANCIAL DATA.
(1) Borrower will furnish to Xxxx, and will cause each guarantor of
all or any part of the Indebtedness to furnish to Xxxx upon request, (i) within
ninety (90) days after the close of each calendar year, balance sheet and profit
and loss statements for the immediately preceding calendar year prepared in
accordance with generally accepted accounting principles and practices
consistently applied, certified as being true, correct and complete by the chief
financial officer or another senior officer (acceptable to Xxxx) of the subject
thereof and, if Xxxx so requires as to the financial statements of Horizon Group
Properties, Inc. and Prime Retail, L.P., accompanied by the annual audit report
of an independent certified public accountant reasonably acceptable to Xxxx,
(ii) within
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45 days following the end of each fiscal quarter of Borrower, quarterly
financial statements of Xxxxxxxx and each guarantor of all or any part of the
Indebtedness, certified as true and correct by the subject thereof, (iii) within
20 days following the end of each month, operating statements for the
immediately preceding calendar month together with a complete rent roll and
other supporting data reflecting all material information with respect to the
operation of the Property and Improvements during the period covered thereby,
and (iv) all other financial information and reports that Xxxx may, from time to
time, reasonably request, including, if Xxxx so requires, income tax returns of
Borrower and any guarantor of the Indebtedness, and financial statements of any
tenant of all or any part of the Property designated by Xxxx.
11. CONDEMNATION. If the Property, or any part thereof, shall be condemned
for any reason, including, without limitation, fire or earthquake damage, or
otherwise taken for public or quasi-public use under the power of eminent
domain, or be transferred in lieu thereof, all damages or other amounts awarded
for the taking of, or injury to, the Property shall be paid to Xxxx, and Xxxx
shall have the right, in its sole and absolute discretion, to apply the amounts
so received against (a) the costs and expenses of Xxxx, including reasonable
attorneys' fees incurred in connection with collection of such amounts, and (b)
the balance against the Indebtedness; provided, however, that if (i) no Event of
Default shall have occurred and be continuing hereunder, (ii) Borrower provides
evidence satisfactory to Xxxx of its ability to pay all amounts becoming due
under the Notes during the pendency of any restoration or repairs to or
replacement of the Property, (iii) Xxxx determines, in its sole discretion, that
the proceeds of such award are sufficient to restore, repair, replace and
rebuild the Property as nearly as possible to its value, condition and character
immediately prior to such taking (or, if the proceeds of such award are
insufficient for such purpose, if Borrower provides additional sums to Xxxx'x
satisfaction so that the aggregate of such sums and the proceeds of such award
will be sufficient for such purpose), and (iv) Borrower provides evidence
satisfactory to Xxxx that as a result of either the condemnation or taking or
the repairs to or replacement of the Property, no more than an immaterial number
of the tenants of the Property (as determined by Xxxx in the exercise of its
reasonable business judgment) will terminate their lease agreements, then the
proceeds of such award, together with additional sums provided by Borrower,
shall be placed in a separate account for the benefit of Xxxx and Borrower to be
used to restore, repair, replace and rebuild the Property as nearly as possible
to its value, condition and character immediately prior to such taking. All work
to be performed in connection therewith shall be pursuant to a written contract
therefor, which contract shall be subject to the prior approval of Xxxx. To the
extent that any funds remain after the Property has been so restored and
repaired, the same shall be applied against the Indebtedness in such order as
Xxxx may elect. To enforce its rights hereunder, Xxxx shall be entitled to
participate in and control any condemnation proceedings and to be represented
therein by counsel of its own choice, and Xxxxxxxx will deliver, or cause to be
delivered to Xxxx such instruments as may be requested by Xxxx from time to time
to permit such participation. In the event Xxxx, as a result of any such
judgment, decree or award, believes that the payment or performance of any of
the Indebtedness is or shall be impaired, Xxxx may declare all of the
Indebtedness immediately due and payable.
12. BORROWER AND LIEN NOT RELEASED. From time to time, Xxxx may, at Xxxx'x
option, without giving notice to or obtaining the consent of Borrower,
Xxxxxxxx's successors or assigns or of any junior lienholder or guarantors,
without liability on Xxxx'x part and notwithstanding
30
Borrower's breach of any covenant or agreement of Borrower in this Instrument,
extend the time for payment of the Indebtedness or any part thereof, reduce the
payments thereon, release anyone liable on any of the Indebtedness, accept an
extension or modification or renewal note or notes therefor, modify the terms
and time of payment of the Indebtedness, release from the lien of this
Instrument any part of the Property, take or release other or additional
security, reconvey any part of the Property, consent to any map or plan of the
Property, consent to the granting of any easement, join in any extension or
subordination agreement, and agree in writing with Borrower to modify the rate
of interest or period of amortization of the Note or decrease the amount of the
monthly installments payable thereunder. Any actions taken by Xxxx pursuant to
the terms of this SECTION 12, except to the extent any of the following are
modified pursuant to any agreement executed by Xxxx, shall not affect the
obligation of Borrower or Xxxxxxxx's successors or assigns to pay the sums
secured by this Instrument and to observe the covenants of Borrower contained
herein, shall not affect the guaranty of any person, corporation, partnership or
other entity for payment of the Indebtedness, and shall not affect the lien or
priority of the lien hereof on the Property. Borrower shall pay Xxxx a service
charge, together with such title insurance premiums and attorneys' fees as may
be incurred at Xxxx'x option, for any such action if taken at Borrower's
request.
13. FORBEARANCE BY XXXX NOT A WAIVER. Any forbearance by Xxxx in
exercising any right or remedy hereunder, or otherwise afforded by applicable
law, shall not be a waiver of or preclude the exercise of any other right or
remedy. The acceptance by Xxxx of payment of any sum secured by this Instrument
after the due date of such payment shall not be a waiver of Xxxx'x right to
either require prompt payment when due of all other sums so secured or to
declare a default for failure to make prompt payment. The procurement of
insurance or the payment of taxes or other liens or charges by Xxxx shall not be
a waiver of Xxxx'x right to accelerate the maturity of the Indebtedness secured
by this Instrument, nor shall Xxxx'x receipt of any awards, proceeds or damages
under SECTIONS 5 OR 11 hereof operate to cure or waive Borrower's default in
payment of sums secured by this Instrument.
14. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. This Instrument is
intended to be a security and a fixture filing agreement pursuant to the Uniform
Commercial Code for any and all of the items specified above as part of the
Property which, under applicable law, may be subject to a security interest
pursuant to the Uniform Commercial Code, and Borrower hereby grants and conveys
to Xxxx a first and prior security interest in all of the Property that
constitutes personalty, whether now owned or hereafter acquired. Borrower is the
debtor and Xxxx is the secured party. The respective addresses of Borrower and
of Xxxx are as provided on page 1 of this Instrument. Borrower hereby authorizes
Xxxx to file this Instrument, or a reproduction thereof, and any other financing
statements describing the Property which are deemed necessary by Xxxx, in the
real estate records and other appropriate indexes as determined by Xxxx, as a
financing statement for any of the items specified above as part of the
Property. Any reproduction of this Instrument or of any other security agreement
or financing statement shall be sufficient as a financing statement. In
addition, Xxxxxxxx agrees to execute and deliver to Xxxx, upon Xxxx'x request,
any additional financing statements, as well as extensions, renewals and
amendments thereof, and reproductions of this Instrument in such form as Xxxx
may require to perfect a security interest with respect to the foregoing items.
Borrower shall pay all costs of filing such financing statements and any
extensions, renewals, amendments and releases thereof, and shall pay all costs
and expenses of any record
31
searches for financing statements Xxxx may require. Without the prior written
consent of Xxxx, Borrower shall not create or suffer to be created pursuant to
the Uniform Commercial Code any other security interest in said items, including
replacements and additions thereto. Upon Xxxxxxxx's breach of any covenant or
agreement of Borrower contained in this Instrument, including the covenants to
pay when due all sums secured by this Instrument, Xxxx shall have the remedies
of a secured party under the Uniform Commercial Code, and Xxxx also may invoke
the remedies provided in SECTION 26 of this Instrument as to such items. In
exercising any of said remedies, Xxxx may proceed against the items of real
property and any items of personal property specified above, separately or
together, and in any order whatsoever, without in any way affecting the
availability of Xxxx'x remedies under the Uniform Commercial Code or of the
remedies provided in SECTION 26 of this Instrument. Within ten (10) days
following any request therefor by Xxxx, Borrower shall prepare and deliver to
Xxxx a written inventory specifically listing all of the personal property
covered by the security interest herein granted, which inventory shall be
certified by Borrower as being true, correct and complete.
15. LEASES OF THE PROPERTY. As used in this SECTION 15, the word "Lease"
shall include subleases if this Instrument is on a leasehold. Borrower shall
comply with and observe Xxxxxxxx's obligations as landlord under all Leases of
the Property or any part thereof. All Leases now or hereafter entered into will
be in form and substance subject to the approval of Xxxx in accordance with the
Lease Assignment. All Leases of the Property shall specifically provide that
such Leases are subordinate to this Instrument; that the tenant attorns to Xxxx,
such attornment to be effective upon Xxxx'x acquisition of title to the
Property; that the tenant agrees to execute such further evidences of attornment
as Xxxx may, from time to time, request; that the attornment of the tenant shall
not be terminated by foreclosure; and that Xxxx may, at Xxxx'x option, accept or
reject such attornments. Borrower shall not, without Xxxx'x written consent,
request or consent to the subordination of any Lease of all or any part of the
Property to any lien subordinate to this Instrument. If Xxxxxxxx becomes aware
that any tenant proposes to do, or is doing, any act or thing which may give
rise to any right of set-off against rent, Borrower shall (a) take such steps as
shall be reasonably calculated to prevent the accrual of any right to a set-off
against rent, (b) immediately notify Xxxx thereof in writing and of the amount
of said set-offs, and (c) within ten (10) days after such accrual, reimburse the
tenant who shall have acquired such right to set-off or take such other steps as
shall effectively discharge such setoff and as shall assure that rents
thereafter due shall continue to be payable without set-off or deduction. Upon
Xxxx'x receipt of notice of the occurrence of any default or violation by
Borrower of any of its obligations under the Leases, Xxxx shall have the
immediate right, but not the duty or obligation, without prior written notice to
Borrower or to any third party, to enter upon the Property and to take such
actions as Xxxx may xxxx necessary to cure any default or violation by Borrower
under the Leases. The costs incurred by Xxxx in taking any such actions pursuant
to this SECTION 15 shall become part of the Indebtedness, shall bear interest at
the Default Rate provided in the Notes, and shall be payable by Borrower to Xxxx
on demand. Xxxx shall have no liability to Borrower or to any third party for
any actions taken by Xxxx or not taken pursuant to this SECTION 15.
16. REMEDIES CUMULATIVE. Each remedy provided in this Instrument is
distinct and cumulative to all other rights or remedies under this Instrument or
afforded by law or equity, and may be exercised concurrently, independently or
successively, in any order whatsoever.
32
17. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN BORROWER;
ASSUMPTION. Xxxx may, at its option, declare all sums secured by this Instrument
to be immediately due and payable, and Xxxx may invoke any remedies permitted by
SECTION 26 of this Instrument, if title to any of the Property is changed
without the prior written consent of Xxxx, which consent shall be at Xxxx'x sole
discretion. Any transfer of any interest in any of the Property or in the income
therefrom, by sale, lease (except for leases to tenants in the ordinary course
of managing income producing property which are consented to by Xxxx pursuant to
SECTION 15 of this Instrument or pursuant to that certain Assignment of
Landlord's Interest in Leases, of even date herewith, executed by Xxxxxxxx for
the benefit of Xxxx and which constitutes a Loan Document), contract, mortgage,
deed of trust, further encumbrance or otherwise (including any such transfers as
security for additional financing of the Property), and any change in or
transfer, assignment, hypothecation or pledge of any of the ownership interests
in Borrower (including any change in or transfer, assignment, hypothecation or
pledge of any of the ownership interests of any legal entities which comprise or
control Borrower), shall be considered a change of title. Without limitation of
Xxxx'x right, in Xxxx'x sole discretion, to grant or refuse its consent to any
transfer or change of title as described herein, Xxxx shall have the right to
condition its consent to any proposed sale or transfer described in this SECTION
17 upon, among other things, Xxxx'x approval of the transferee's
creditworthiness and management ability, and the transferee's execution, prior
to the sale or transfer, of a written assumption agreement containing such terms
as Xxxx may require, including, if required by Xxxx, the imposition of a
transfer fee of one percent (1%) of the then outstanding balance of the
Indebtedness. Consent by Xxxx to one transfer of the Property shall not
constitute consent to subsequent transfers or waiver of the provisions of this
SECTION 17. No transfer by Xxxxxxxx shall relieve Borrower of liability for
payment of the Indebtedness.
18. NOTICE. Except for any notice required under applicable law to be
given in another manner, any and all notices, elections, demands, or requests
permitted or required to be made under this Instrument or under either Note or
any other Loan Document shall be in writing, and shall be delivered personally,
by telegram, or sent by registered, certified, or Express United States mail,
postage prepaid, or by Federal Express or similar service requiring a receipt,
to the other party at the address stated above, or to such other party and at
such other address within the United States of America to which certified or
registered mail may be sent and delivered as any party may designate in writing
as provided herein. The date of receipt of such notice, election, demand or
request shall be the earliest of (a) the date of actual receipt, (b) three (3)
days after the date of mailing by registered or certified mail, (c) one (1)
business day after the date of mailing by Express Mail or the delivery (for
redelivery) to Federal Express or another similar service requiring a receipt,
or (d) the date of personal delivery (or refusal upon presentation for
delivery).
19. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; AGENTS;
CAPTIONS. The covenants and agreements herein contained shall bind, and the
rights hereunder shall inure to, the respective heirs, successors and assigns of
Xxxx and Xxxxxxxx, subject to the provisions of SECTION 17 hereof. If Borrower
is comprised of more than one person or entity, whether as individuals,
partners, partnerships or corporations, each such person or entity shall be
jointly and severally liable for Borrower's obligations hereunder. In exercising
any rights hereunder or taking any actions provided for herein, Xxxx may act
through its employees, agents or independent
33
contractors as authorized by Xxxx. The captions and headings of the sections of
this Instrument are for convenience only and are not to be used to interpret or
define the provisions hereof.
20. Intentionally Deleted
21. WAIVER OF MARSHALLING. Notwithstanding the existence of any other
security interests in the Property held by Xxxx or by any other party, Xxxx
shall have the right to determine the order in which any or all of the Property
shall be subjected to the remedies provided herein. Xxxx shall have the right to
determine the order in which any or all portions of the Indebtedness secured
hereby are satisfied from the proceeds realized upon the exercise of the
remedies provided herein. Borrower, any party who consents to this Instrument
and any party who now or hereafter acquires a security interest in the Property
and who has actual or constructive notice hereof hereby waives any and all right
to require the marshalling of assets in connection with the exercise of any of
the remedies permitted by applicable law or provided herein.
22. HAZARDOUS WASTE. Borrower has furnished to Xxxx a ___________ dated
_____________, prepared by ___________________ (the "Report"). Except as
disclosed to Xxxx in the Report, Borrower has received no notification of any
kind suggesting that the Property or any adjacent property is or may be
contaminated with any hazardous waste or materials or is or may be required to
be cleaned up in accordance with any applicable law or regulation; and Borrower
further represents and warrants that, except as previously disclosed to Xxxx in
writing, to the best of its knowledge as of the date hereof, after due and
diligent inquiry, there are no hazardous waste or materials located in, on or
under the Property or any adjacent property, or incorporated in any
Improvements, nor has the Property or any adjacent property ever been used as a
landfill or a waste disposal site, or a manufacturing, handling, storage,
distribution or disposal facility for hazardous waste or materials. As used
herein, the term "hazardous waste or materials" includes any substance or
material defined in or designated as hazardous or toxic wastes, hazardous or
toxic material, a hazardous, toxic or radioactive substance, or other similar
term, by any federal, state or local statute, regulation or ordinance now or
hereafter in effect. Borrower shall promptly comply with all statutes,
regulations and ordinances, and with all orders, decrees or judgments of
governmental authorities or courts having jurisdiction, relating to the use,
collection, treatment, disposal, storage, control, removal or cleanup of
hazardous waste or materials in, on or under the Property or any adjacent
property, or incorporated in any Improvements, at Borrower's expense. In the
event that Xxxx at any time has a reasonable belief that the Property is not
free of all hazardous waste or materials or that Borrower has violated any
applicable environmental law with respect to the Property, then upon request by
Xxxx, Borrower shall obtain, as soon as possible (but in no event later than 15
days) following such request, and furnish to Xxxx, at Borrower's sole cost and
expense, an environmental audit and inspection of the Property from an expert
satisfactory to Xxxx. In the event that Borrower fails to so obtain such audit
or inspection, Xxxx or its agents may perform or obtain such audit or inspection
at Borrower's sole cost and expense. Xxxx may, but is not obligated to, enter
upon the Property and take such actions and incur such costs and expenses to
effect such compliance as it deems advisable to protect its interest in the
Property; and whether or not Borrower has actual knowledge of the existence of
hazardous waste or materials on the Property or any adjacent property as of the
date hereof, Borrower shall reimburse Xxxx as provided in SECTION 23 below for
the full amount of all costs and expenses incurred by Xxxx prior to Xxxx
acquiring title to the Property
34
through foreclosure or acceptance of a deed in lieu of foreclosure, in
connection with such compliance activities. Neither this provision nor any of
the other Loan Documents shall operate to put Xxxx in the position of an owner
of the Property prior to any acquisition of the Property by Xxxx. The rights
granted to Xxxx herein and in the other Loan Documents are granted solely for
the protection of Xxxx'x xxxx and security interest covering the Property and do
not grant to Xxxx the right to control Xxxxxxxx's actions, decisions or policies
regarding hazardous waste or materials.
23. ADVANCES, COSTS AND EXPENSES. Borrower shall pay, within ten (10) days
after written demand from Xxxx, all sums advanced by Xxxx and all costs and
expenses incurred by Xxxx in taking any actions pursuant to the Loan Documents,
including reasonable attorneys' fees and disbursements, reasonable accountants'
fees, appraisal and inspection fees, and the costs for title reports and
guaranties, and, if such amounts are not so paid to Xxxx within such ten (10)
day period, interest thereon at the Default Rate applicable under the Notes from
the date such costs were advanced or incurred. All such costs and expenses
incurred by Xxxx and advances made shall constitute advances under this
Instrument to protect the Property and shall be secured by and have the same
priority as the lien of this Instrument. If Xxxxxxxx fails to pay any such
advances, costs and/or expenses and interest thereon, Xxxx may apply any
undisbursed Loan proceeds or make a protective advance even if there are no
undisbursed Loan proceeds to pay the same and, without foreclosing the lien of
this Instrument, may, at its option, commence an independent action against
Borrower for the recovery of the costs, expenses and/or advances, with interest,
together with costs of suit, costs of title reports and guaranty of title,
disbursements of counsel and reasonable attorneys' fees incurred therein or in
any appeal therefrom.
24. ASSIGNMENT OF LEASES AND RENTS. Pursuant to Act 210 of the Public Acts
of Michigan of 1953, as amended, Xxxxxxxx, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, to secure the
Indebtedness, does hereby absolutely and unconditionally grant, bargain, sell,
transfer, assign, mortgage, convey, set over and deliver unto Xxxx, and does
hereby grant to Xxxx a security interest in, all right, title and interest of
Xxxxxxxx in, to and under the Leases of the Property, whether now in existence
or hereafter entered into, and all guaranties, amendments, extensions and
renewals of said Leases and any of them, and all rents, income and profits which
may now or hereafter be or become due or owing under the Leases, and any of
them, or on account of the use of the Property.
Borrower represents, warrants, covenants and agrees with Xxxx as follows:
(1) The sole ownership of the entire lessor's interest in the Leases is
vested in Borrower, and Borrower has not, and shall not, perform any
acts or execute any other instruments which might prevent Xxxx from
fully exercising its rights with respect to the Leases under any of
the terms, covenants and/or conditions of this Instrument.
(2) Except as specifically described in that certain Xxxxxxxx's Affidavit,
of even date herewith, executed by Xxxxxxxx for the benefit of Xxxx
(the "Affidavit"), the Leases are and shall be valid and enforceable
in accordance with their terms and have not been and shall not be
altered, modified, amended, terminated, canceled, renewed or
surrendered, except as approved in writing by Xxxx. The terms and
conditions of the
35
Leases have not been (except as otherwise specifically described in
the Affidavit), and shall not be, waived in any manner whatsoever,
except as approved in writing by Xxxx.
(3) Borrower shall not materially alter the term or the amount of rent
payable under any Lease without prior written notice to Xxxx and
Beal's prior written consent, which consent shall not be unreasonably
withheld.
(4) To the best of Xxxxxxxx's knowledge, (except as otherwise specifically
described in the Affidavit), there are no defaults now existing under
any of the Leases and there exists no state of facts which, with the
giving of notice or lapse of time or both, would constitute a default
under any of the Leases.
(5) Borrower shall give prompt written notice to Xxxx of any notice
received by Borrower claiming that a default has occurred under any of
the Leases on the part of Borrower, together with a complete copy of
any such notice.
(6) Each of the Leases shall remain in full force and effect irrespective
of any merger of the interest of lessor and any lessee under any of
the Leases.
(7) Borrower will not permit (except as currently permitted by any
existing lease) any Lease to become subordinate to any lien other than
the lien of this Instrument.
(8) Borrower shall not permit (except as currently permitted by any
existing Lease) or consent to the assignment by any tenant of its
rights under its Lease without the prior written consent of Xxxx.
Without limitation of the foregoing, Borrower shall not permit (except
as currently permitted by any existing lease) or consent to the filing
of any encumbrance against the tenant's interest under any Lease
including, without limitation, any leasehold mortgage.
(i) The only Leases currently in effect are those described on EXHIBIT "B"
to the Affidavit.
This assignment is absolute, is effective immediately, and is irrevocable
by Borrower so long as the Indebtedness remains outstanding. Notwithstanding the
foregoing, until a Notice is sent to Borrower in writing that an Event of
Default has occurred (which notice is hereafter called a "Notice"), Borrower may
receive, collect and enjoy the rents, income and profits accruing from the
Property.
Upon the occurrence of an Event of Default hereunder, Xxxx may, at its
option, after service of a Notice, receive and collect all such rents, income
and profits from the Property as they become due. Xxxx shall thereafter continue
to receive and collect all such rents, income and profits, as long as such Event
of Defaults shall exist, and during the pendency of any foreclosure proceedings.
36
Borrower hereby irrevocably appoints Xxxx its true and lawful attorney with
power of substitution and with full power for Xxxx in its own name and capacity
or in the name and capacity of Borrower, from and after service of a Notice, to
demand, collect, receive and give complete acquittances for any and all rents,
income and profits accruing from the Property, either in its own name or in the
name of Borrower or otherwise, which Xxxx may xxxx necessary or desirable in
order to collect and enforce the payment of the rents, income and profits of and
from the Property. Lessees of the Property are hereby expressly authorized and
directed, following receipt of a Notice from Xxxx, to pay any and all amounts
due Borrower pursuant to the Leases to Xxxx or such nominee as Xxxx may
designate in a writing delivered to and received by such lessees, and the
lessees of the Property are expressly relieved of any and all duty, liability or
obligation to Borrower in respect of all payments so made.
Upon the occurrence of any Event of Default, from and after service of a
Notice, Xxxx is hereby vested with full power to use all measures, legal and
equitable, deemed by it to be necessary or proper to enforce this SECTION 24 and
to collect the rents, income and profits assigned hereunder, including the right
of Xxxx or its designee, to enter upon the Property, or any part thereof, and
take possession of all or any part of the Property together with all personal
property, fixtures, documents, books, records, papers and accounts of Borrower
relating thereto, and Xxxx may exclude Borrower, its agents and servants, wholly
therefrom. Borrower hereby grants full power and authority to Xxxx to exercise
all rights, privileges and powers herein granted at any and all times after
service of a Notice, with full power to use and apply all of the rents and other
income herein assigned to the payment of the costs of managing and operating the
Property and of any indebtedness or liability of Borrower to Xxxx, including,
but not limited, to the payment of taxes, special assessments, insurance
premiums, damage claims, the costs of maintaining, repairing, rebuilding and
restoring the Improvements on the Property or of making the same rentable,
reasonable attorneys' fees incurred in connection with the enforcement of this
Instrument, and of principal and interest payments due from Borrower to Xxxx on
the Note and this Instrument, all in such order as Xxxx may determine. Xxxx
shall be under no obligation to exercise or prosecute any of the rights or
claims assigned to it hereunder or to perform or carry out any of the
obligations of the lessor under any of the Leases and does not assume any of the
liabilities in connection with or arising or growing out of the covenants and
agreements of Borrower in the Leases. It is further understood that the
assignment set forth in this SECTION 24 shall not operate to place
responsibility for the control, care, management or repair of the Property, or
parts thereof, upon Xxxx, nor shall it operate to make Xxxx liable for the
performance of any of the terms and conditions of any of the Leases, or for any
waste of the Property by any lessee under any of the Leases, or any other
person, or for any dangerous or defective condition of the Property or for any
negligence in the management, upkeep, repair or control of the Property
resulting in loss or injury or death to any lessee, licensee, employee or
stranger.
25. DEFAULT. The following shall each constitute an event of default
("Event of Default"):
(1) Failure of Borrower to make any payment of principal, interest,
or any payment due under either Note when due, and such failure shall continue
upon the expiration of any cure or grace period, if any is applicable, set forth
in the Note in question; or
37
(2) Failure of Borrower within the time required by this Instrument
to make any payment for taxes, insurance or for reserves for such payments, or
any other payment necessary to prevent filing of or discharge of any lien, and
such failure shall continue upon the expiration of any cure or grace period, if
any is applicable, set forth in the Notes; or
(3) Failure by Borrower to observe or perform any of its
obligations under any of the Leases; or
(4) The Property or any part of or interest in the Property is
transferred in any manner whatsoever without the prior written consent of Xxxx,
which consent may be granted or withheld at the sole discretion of Xxxx; or
(5) If any lien or encumbrance is filed against any of the Property
without Xxxx'x prior written consent if such lien or encumbrance is not bonded
around (in a manner satisfactory to Xxxx in its sole discretion) or removed and
released within fifteen (15) days following the filing thereof; or
(6) If any lease agreement covering all or any portion of the
Property is executed by Xxxxxxxx without Xxxx'x prior written consent, which
consent may be granted or withheld by Xxxx as provided in that certain
Assignment of Landlord's Interest on Leases, of even date herewith, executed by
Borrower for the benefit of Xxxx; or
(7) Filing by Borrower of a voluntary petition in bankruptcy or
filing by Borrower, any guarantor of all or any part of the Indebtedness or any
person or entity that provides any collateral for all or any part of the
Indebtedness (each such Guarantor and each such other person or entity so
providing collateral being referred to herein individually as an "Other Obligor"
and all thereof being referred to herein collectively as the "Other Obligors")
of any petition or answer seeking or acquiescing in any reorganization,
arrangement, composition, readjustment, liquidation, 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
the seeking, consenting to, or acquiescing by Borrower or any Other Obligor in
the appointment of any trustee, receiver, custodian, conservator or liquidator
for Borrower or any Other Obligor, any part of the Property, or any of the
income or rents of the Property, or the making by Borrower or any Other Obligor
of any general assignment for the benefit of creditors, or the inability of or
failure by Borrower or any Other Obligor to pay its debts generally as they
become due, or the insolvency on a balance sheet basis or business failure of
Borrower or any Other Obligor, or the making or suffering of a preference within
the meaning of federal bankruptcy law, or the making of a fraudulent transfer
under applicable federal or state law, or concealment by Borrower or any Other
Obligor of any of its property in fraud of creditors, or the imposition of a
lien upon any of the property of Borrower which is not discharged in the manner
permitted by SECTION 4 of this Instrument, or the giving of notice by Borrower
or any Other Obligor to any governmental body of insolvency or suspension of
operations; or
(8) Filing of a petition against Borrower or any Other Obligor
seeking any reorganization, arrangement, composition, readjustment, liquidation,
or similar relief under any present or future federal, state or other law or
regulation relating to bankruptcy, insolvency or other
38
relief for debts, or the appointment of any trustee, receiver, custodian,
conservator or liquidator of Borrower or any Other Obligor, of any part of the
Property or of any of the income or rents of the Property, unless such petition
shall be dismissed within sixty (60) days after such filing, but in any event
prior to the entry of an order, judgment or decree approving such petition; or
(9) The institution of any proceeding for the dissolution or
termination of Borrower or any Other Obligor voluntarily, involuntarily, or by
operation of law; or
(10) A material adverse change occurs in the assets, liabilities or
net worth of Borrower or any Other Obligor from the assets, liabilities or net
worth of Borrower or any Other Obligor previously disclosed to Xxxx; or
(11) Any warranty, representation or statement furnished to Xxxx by
or on behalf of Borrower or any Other Obligor under either Note, this Instrument
or any of the other Loan Documents shall prove to have been false or misleading
in any material respect; or
(12) Failure of Borrower to observe or perform any other obligation
under this Instrument or any other Loan Document when such observance or
performance is due, and such failure shall continue for a period of ten (10)
days following the date written notice of such failure is given to the Borrower
by or on behalf of Xxxx.
26. RIGHTS AND REMEDIES ON DEFAULT.
26.1 REMEDIES. Upon the occurrence of any Event of Default and at any time
thereafter, Xxxx may exercise any one or more of the following rights and
remedies:
x. Xxxx may declare the entire Indebtedness, including the then
unpaid principal balance on the Notes, the accrued but unpaid interest thereon,
court costs and attorney's fees hereunder immediately due and payable, without
notice, presentment, protest, demand or action of any nature whatsoever (each of
which hereby is expressly waived by Borrower), whereupon the same shall become
immediately due and payable. Additionally, Xxxx shall not be required to make
any further advances on either Note or any other Loan Document upon the
occurrence of an Event of Default or an event which, with the giving of notice
or passing of time, would constitute an Event of Default.
b. (i) Power is hereby granted to Xxxx, if an Event of Default has
occurred, to grant, bargain, sell, release and convey the Property at public
auction or vendue, and on such sale to execute and deliver to the purchasers,
his, her, its or their heirs, successors and assigns, good, ample and sufficient
deed or deeds of conveyance in law, pursuant to the statute in such case made
and provided (said statute being M.C.L.A. Section 600.3201, et seq., or any
successor or substitute statute), and to apply the proceeds of such sale in the
manner herein provided.
(ii) Upon a foreclosure of the Property or any part thereof,
the proceeds of such sale shall be applied in the following order:
39
(A) The payment of all costs of the suit or
foreclosure, including a reasonable attorney fee and the cost
of title searches and abstracts;
(B) To the payment of all other expenses of Xxxx,
including all monies expended by Xxxx and all other amounts
payable by Borrower to Xxxx hereunder, with interest thereon;
(C) To the payment of the principal and interest of
the Indebtedness secured hereby;
(D) To the payment of the surplus, if any, to
Xxxxxxxx or to whosoever shall be entitled thereto.
c. Power is hereby granted to Xxxx, if an Event of Default exists,
to grant, bargain, sell, release and convey the Property at public auction or
vendue, and on such sale to execute and deliver to the purchasers, his, her, its
or their heirs, successors and assigns, good ample and sufficient deed or deeds
of conveyance in law, pursuant to the statute in such case made and provided
(said statute being M.C.L.A. Section 600.3201, et seq., or any successor or
substitute statute), and to apply the proceeds of such sale in the manner
hereinafter provided.
d. Upon any foreclosure sale of the Property, the same may be sold
either as a whole or in parcels, as Xxxx may elect, and if in parcels, the same
may be divided as Xxxx may elect, and at the election of Xxxx may be offered
first in parcels and then as a whole, that offer producing the highest price for
the entire Property to prevail, any law, statutory or otherwise, to the contrary
notwithstanding, and Borrower hereby waives the right to require any such sale
to be made in parcels or the right to select such parcels.
x. Xxxx shall otherwise have the right to foreclose this
Instrument in accordance with applicable law.
f. If this Instrument is foreclosed, Xxxx will be entitled to a
judgment which will provide that if the foreclosure sale proceeds are
insufficient to satisfy the judgment, execution may issue for any amount by
which the unpaid balance of the obligations secured by this Instrument exceeds
the net sale proceeds payable to Xxxx.
g. With respect to all or any part of the Property that
constitutes personalty, Xxxx shall have all rights and remedies of secured party
under the Uniform Commercial Code.
x. Xxxx shall have the right to have a receiver appointed to take
possession of any or all of the Property, with the power to protect and preserve
the Property, to operate the Property preceding foreclosure or sale, to collect
all the rents and revenues from the Property and apply the proceeds, over and
above cost of the receivership, against the sums due under this Instrument, and
to exercise all of the rights with respect to the Property described in SECTION
24 above. The receiver may serve without bond if permitted by law. Xxxx'x right
to the appointment of a receiver shall exist
40
whether or not the apparent value of the Property exceeds the sums due under
this Instrument by a substantial amount. Employment by Xxxx shall not disqualify
a person from serving as a receiver.
i. In the event Xxxxxxxx remains in possession of the Property
after the Property is sold as provided above or Xxxx otherwise becomes entitled
to possession of the Property upon default of Borrower, Borrower shall become a
tenant at will of Xxxx or the purchaser of the Property and shall pay a
reasonable rental for use of the Property while in Borrower's possession.
x. Xxxx shall have any other right or remedy provided in this
Instrument, the Note, or any other Loan Document or instrument delivered by
Borrower in connection therewith, or available at law, in equity or otherwise.
x. Xxxx shall have all the rights and remedies set forth in
SECTION 24.
l. To the fullest extent permitted by law, Borrower hereby
irrevocably and unconditionally waives and releases (i) all benefits that might
accrue to Borrower by any present or future laws exempting the Property from
attachment, levy or sale on execution or providing for any appraisement,
valuation, stay of execution, exemption from civil process, redemption or
extension of time for payment; (ii) all notices of any Event of Default (except
as may be specifically provided for under the terms hereof), presentment,
demand, notice of intent to accelerate, notice of acceleration and any other
notice of Xxxx'x election to exercise or the actual exercise of any right,
remedy or recourse provided for under the Loan Documents; (iii) any right to
appraisal or marshalling of assets or a sale in inverse order of alienation;
(iv) the exemption of homestead; and (v) the administration of estates of
decedents, or other matter to defeat, reduce or affect the right of Xxxx under
the terms of this Instrument to sell the Property for the collection of the
Indebtedness secured hereby (without any prior or different resort for
collection) or the right of Xxxx, under the terms of this Instrument, to receive
the payment of the Indebtedness out of the proceeds of sale of the Property in
preference to every other person and claimant whatever (only reasonable expenses
of such sale being first deducted).
m. The purchaser at any sale hereunder may disaffirm any easement
granted, or rental, lease or other contract made in violation of any provisions
of this Instrument and may take immediate possession of the Property free from,
and despite the terms of, any such grant of easement, rental, lease or other
contract.
26.2 SALE OF THE PROPERTY. In exercising its rights and remedies, Xxxx may,
at Xxxx'x sole discretion, cause all or any part of the Property to be sold as a
whole or in parcels, and certain portions of the Property may be sold without
selling other portions. Xxxx may bid at any public sale on all or any portion of
the Property.
26.3 NOTICE OF SALE. Xxxx shall give Borrower reasonable notice of the time
and place of any public sale of any personal property or of the time after which
any private sale or other intended disposition of the personal property is to be
made. Reasonable notice shall mean notice given in accordance with applicable
law, including notices given in the manner and at the times required for
41
notices in a nonjudicial foreclosure, and Xxxxxxxx agrees that notice given not
less than ten (10) days prior to the sale in question is reasonable notice.
26.4 WAIVER; ELECTION OF REMEDIES. A waiver by either party of a breach of
a provision of this Instrument shall not constitute a waiver of or prejudice the
party's right otherwise to demand strict compliance with that provision or any
other provision. Election by Xxxx to pursue any remedy shall not exclude pursuit
of any other remedy, and all remedies of Xxxx under this Instrument are
cumulative and not exclusive. An election to make expenditures or take action to
perform an obligation of Borrower shall not affect Xxxx'x right to declare a
default and exercise its remedies under this Instrument.
27. SATISFACTION OF MORTGAGE. Upon payment of all sums secured by this
Instrument, Xxxx shall execute a satisfaction of this Instrument and shall
surrender this Instrument and all notes evidencing Indebtedness secured by this
Instrument to the person or persons legally entitled thereto. Such person or
persons shall pay Xxxx'x costs incurred in connection with satisfaction of this
Instrument.
28. USE OF PROPERTY. The Property is not currently used for agricultural,
farming, timber or grazing purposes. Borrower warrants that this Instrument is
and will at all times constitute a commercial mortgage, as defined under
appropriate state law.
29. FUTURE ADVANCES. Upon request of Xxxxxxxx, Xxxx, at Xxxx'x option so
long as this Instrument secures Indebtedness held by Xxxx, may make Future
Advances to Borrower. Such Future Advances, with interest thereon, shall be
secured by this Instrument when evidenced by promissory notes stating that said
notes are secured hereby.
30. IMPOSITION OF TAX BY STATE.
(1) STATE TAXES COVERED. The following constitute state taxes to
which this SECTION 30 applies:
(1) A specific tax upon mortgages or upon all or any part of
the indebtedness secured by a mortgage.
(2) A specific tax on a grantor which the taxpayer is
authorized or required to deduct from payments on the indebtedness secured by a
mortgage.
(3) A tax on a mortgage chargeable against the mortgagee or
the holder of the note secured.
(4) A specific tax on all or any portion of the indebtedness
or on payments of principal and interest made by a mortgagor (but not including
any taxes imposed upon or measured by Xxxx'x income or profits).
42
(2) REMEDIES. If any state tax to which this SECTION 30 applies is
enacted subsequent to the date of this Instrument, this shall have the same
effect as an Event of Default, and Xxxx may exercise any or all of the remedies
available to it unless the following conditions are satisfied:
(1) Borrower may lawfully pay the tax or charge imposed by
state tax, and
(2) Borrower pays the tax or charge within thirty (30) days
after notice from Xxxx that the tax law has been enacted.
31. ATTORNEYS' FEES. In the event suit or action is instituted to enforce
or interpret any of the terms of this Instrument (including, without limitation,
efforts to modify or vacate any automatic stay or injunction), the prevailing
party shall be entitled to recover all expenses reasonably incurred at, before
and after trial and on appeal whether or not taxable as costs, or in any
bankruptcy proceeding including, without limitation, attorneys' fees, witness
fees (expert and otherwise), deposition costs, copying charges and other
expenses. Whether or not any court action is involved, all reasonable expenses,
including but not limited to the costs of searching records, obtaining title
reports, surveyor reports, title insurance, trustee fees, and other attorneys'
fees, incurred by Xxxx that are necessary at any time in Xxxx'x opinion for the
protection of its interest or enforcement of its rights shall become a part of
the Indebtedness payable on demand and shall bear interest from the date of
expenditure until repaid at the interest rate as provided in the Note. The term
"attorneys' fees" as used in the Loan Documents shall be deemed to mean such
fees as are reasonable and are actually incurred.
32. GOVERNING LAW; SEVERABILITY. This Instrument shall be governed by the
law of the State of Michigan applicable to contracts made and to be performed
therein (excluding choice-of-law principles). In the event that any provision or
clause of this Instrument, the Notes or any other Loan Documents conflicts with
applicable law, such conflict shall not affect other provisions of this
Instrument or the Notes or any other Loan Document which can be given effect
without the conflicting provision, and to this end the provisions of this
Instrument, the Notes and the other Loan Documents are declared to be severable.
33. TIME OF ESSENCE. Time is of the essence to this Instrument.
34. CHANGES IN WRITING. This Instrument and any of its terms may only be
changed, waived, discharged or terminated by an instrument in writing signed by
the party against which enforcement of the change, waiver, discharge or
termination is sought. Any agreement subsequently made by Borrower or Xxxx
relating to this Instrument shall be superior to the rights of the holder of any
intervening lien or encumbrance.
35. NO OFFSET. Borrower's obligation to make payments and perform all
obligations, covenants and warranties under this Instrument and under the Notes
shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation any setoff, counterclaim, abatement,
suspension, recoupment, deduction, defense or other right that Borrower or any
guarantor may have or claim against Xxxx or any entity participating in making
the loan secured
43
hereby. The foregoing provisions of this SECTION 36, however, do not constitute
a waiver of any claim or demand which Borrower or any Guarantor may have in
damages or otherwise against Xxxx or any other person, or preclude Borrower from
maintaining a separate action thereon; provided, however, that Borrower waives
any right it may have at law or in equity to consolidate such separate action
with any action or proceeding brought by Xxxx.
36. AUTHORIZATION TO INSERT. Borrower authorizes Xxxx or its agent to
insert in the spaces provided herein the amount of the Notes, the mortgagee's
loan policy number, the title company issuing such policy, the total amounts of
the obligations secured, and the last payment due dates, if any, if the
foregoing information is not typed in on this Instrument.
37. POWER OF SALE. WARNING. THIS INSTRUMENT CONTAINS A POWER OF SALE, AND,
UPON DEFAULT, MAY BE FORECLOSED BY ADVERTISEMENT. IN FORECLOSURE BY
ADVERTISEMENT, NO HEARING IS INVOLVED AND THE ONLY NOTICE REQUIRED IS TO PUBLISH
NOTICE IN A LOCAL NEWSPAPER AND TO POST A COPY OF THE NOTICE ON THE PROPERTY.
38. WAIVER. IF THIS INSTRUMENT IS FORECLOSED BY ADVERTISEMENT, BORROWER
HEREBY VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY WAIVES ALL RIGHTS, UNDER THE
CONSTITUTION AND LAWS OF THE STATE OF MICHIGAN AND CONSTITUTION AND LAWS OF THE
UNITED STATES, TO ALL NOTICE AND A HEARING IN CONNECTION WITH THE ABOVE
MENTIONED FORECLOSURE BY ADVERTISEMENT, EXCEPT AS SET FORTH IN THE MICHIGAN
STATUTE PROVIDING FOR FORECLOSURE BY ADVERTISEMENT.
39. PARTIAL RELEASES. Xxxx has no obligation to release from the lien and
terms of this Instrument or of any other Loan Document all or any portion of the
Property prior to the full and complete payment and performance of all of the
Indebtedness. If sales of portions of the Property are made with the written
consent of Xxxx (which consent may be granted or withheld at the sole discretion
of Xxxx), and if the proceeds from such sales may not be paid to Xxxx as a
prepayment on the loan evidenced by the Notes due to the restrictions on
prepayment set forth in the Notes, the Borrower will be obligated to use the
proceeds from such sales (to the extent in excess of the amount that may be
prepaid on the Notes) to acquire certificates of deposit or other financial
instruments acceptable to Xxxx, issued by banks or other financial institutions
acceptable to Xxxx and on terms acceptable to Xxxx (the "Pledged Investments"),
which will be pledged to and subjected to a first priority, and the only,
security interest in favor of Xxxx as substitute collateral for the Indebtedness
pursuant to documents as required by Xxxx. If the total amount of Pledged
Investments equals the sum of (i) the unpaid principal balance of, plus the
amount of accrued and unpaid interest on, the Indebtedness as of the date Xxxx'x
liens and security interests on the portion of the Property sold are released,
plus (ii) an amount equal to the amount of interest that will accrue on the
Indebtedness for the period from the date of the release of Xxxx'x liens and
security interests in regard to the portion of the Property sold until either
(a) the maturity date of the Indebtedness as specified above or (b) if Borrower
requests that the maturity date of the Indebtedness be modified to be a date on
or after the date the Indebtedness may be prepaid and if the Indebtedness
Documents are modified to so establish such an early maturity date, then such
early maturity date, plus (iii) the amount of interest that will
44
accrue on the Indebtedness at the Default Rate applicable thereto as set forth
in the Notes for a period of six (6) months following the maturity date of the
Indebtedness, plus (iv) an additional sum (taking into account interest that
will accrue on the Pledged Investments and which will be paid to Xxxx as
provided below) not in excess of $100,000.00 as Xxxx may require to cover costs
and expenses Xxxx might incur if the Indebtedness was not paid at maturity, Xxxx
shall release this Instrument and all remaining collateral securing the
Indebtedness. The documents by which the Pledged Investments are pledged to Xxxx
will authorize Xxxx on the first business day of each month to withdraw from the
Pledged Investments (first from the interest accrued thereon, with any balance
due to come from the principal balance of such Pledged Investments) an amount
equal to the interest then due on the Indebtedness for the preceding month and
to pay such sum to Xxxx, and then on the maturity date of the Indebtedness
(whether such maturity date is the then stated maturity date or any accelerated
maturity date) to withdraw from the Pledge Investments an amount equal to the
entire unpaid principal balance of the Indebtedness, plus all accrued and unpaid
interest thereon and all other amounts due to Xxxx in regard to the
Indebtedness, and to pay the same to Xxxx in full satisfaction of the
Indebtedness. After repayment of all amounts owing in regard to the Indebtedness
to Xxxx, the balance, if any, then remaining in such Pledged Investments shall
be returned to the Borrower. After the second (2nd) anniversary of the date
hereof, Borrower may apply any Pledged Investments to repay the principal
balance of the Indebtedness.
39. PUBLICITY. Borrower hereby grants to Xxxx the right to publicize its
making of the loan evidenced by the Notes in such manner as Xxxx deems
appropriate. Such publicity may include disclosure of the amount of such loan,
the nature of the Improvements and such other information relating to Xxxx or
such loan as Xxxx deems appropriate. In addition, Borrower hereby grants to Xxxx
the right to install and maintain signs on the Property providing notice that
the loan has been made by Xxxx. Such signs must not violate applicable legal
requirements but will otherwise be as required by Xxxx.
40. WAIVER OF JURY TRIAL. BORROWER HEREBY KNOWINGLY AND VOLUNTARILY WAIVES
ANY AND ALL RIGHTS THAT BORROWER MAY NOW OR HEREAFTER HAVE UNDER THE LAWS OF THE
UNITED STATES OF AMERICA OR THE LAWS OF THE STATE OF MICHIGAN TO A TRIAL BY JURY
OF ANY AND ALL ISSUES ARISING DIRECTLY OR INDIRECTLY IN ANY ACTION OR PROCEEDING
RELATING TO THIS INSTRUMENT, THE LOAN DOCUMENTS OR ANY TRANSACTIONS CONTEMPLATED
THEREBY OR RELATED THERETO INCLUDING SPECIFICALLY, WITHOUT LIMITATION, ANY AND
ALL DEFENSES, RIGHTS, CLAIMS AND/OR COUNTERCLAIMS IN ANY SUCH ACTION OR
PROCEEDING.
[SIGNATURE AND NOTARY PAGES FOLLOWS]
45
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE
READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO
OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS INSTRUMENT MAY BE
LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS INSTRUMENT ONLY BY
ANOTHER WRITTEN AGREEMENT.
IN WITNESS WHEREOF, Xxxxxxxx has executed this Instrument or has caused the
same to be executed by its representatives thereunto duly authorized.
BORROWER:
MONROE OUTLET CENTER, LLC, a
Michigan limited liability company
By: HORIZON GROUP PROPERTIES, L.P., a
Delaware limited partnership, its manager
By: Horizon Group Properties, Inc., a
Maryland corporation, its general partner
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
ACKNOWLEDGMENT
THE STATE OF _________ SECTION
SECTION
COUNTY OF ____________ SECTION
This instrument was acknowledged before me on this the _____ day of July,
2002, by ____________________________, as ______________________ of Horizon
Group Properties, Inc., as General Partner of Horizon Group Properties, L.P., as
Manager of MONROE OUTLET CENTER, LLC, a Michigan limited liability company, on
behalf of said limited liability company.
--------------------------------------------
Notary Public in and for
the State of __________
Printed Name:_______________________________
My Commission Expires:
_____________________
DRAFTED BY AND WHEN RECORDED RETURN TO:
XXXXXXXX X. XXXXX, ESQ.
XXXXXXX & XXXXXXXXX, A PROFESSIONAL CORPORATION
0000 XXXX XXXXXX, XXXXX 0000
XXXXXX, XXXXX 00000
46
EXHIBIT A
DESCRIPTION OF PROPERTY
47
EXHIBIT B
PERMITTED ENCUMBRANCES
48
