Exhibit 10.4
DRAFTED BY AND AFTER
RECORDING, RETURN TO:
MetLife Capital Financial Corporation
Real Estate Department
00000 X.X. 0xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Loan Number: 2407796-001
MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS,
AND FIXTURE FILING
THIS INSTRUMENT ALSO IS A FUTURE ADVANCE
MORTGAGE UNDER APPLICABLE MICHIGAN LAW
THIS MORTGAGE (herein "Instrument") is made as of May 31 , 1996,
among the Mortgagor, SECOM GENERAL CORPORATION, a Delaware corporation, whose
address is 00000 Xxxxx Xxxxx, Xxxx, Xxxxxxxx 00000 (herein "Borrower"), in
favor of the Mortgagee, METLIFE CAPITAL FINANCIAL CORPORATION, a Delaware
corporation, whose address is Real Estate Department, 10900 X.X.
0xx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx, 00000 (herein "METLIFE").
Borrower, in consideration of the indebtedness herein recited
irrevocably MORTGAGES AND WARRANTS to METLIFE all of Borrower's right, title
and interest, now owned or hereafter acquired, including any reversion or
remainder interest, in the real property located in the City of Novi, County
of Oakland, State of Michigan 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 "Premises");
TOGETHER with all of Borrower's estate, right, title and interest,
now owned or hereafter acquired, in:
(a) 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, cooling, ventilating, sprinkling and vacuum cleaning systems, fire
extinguishing apparatus, gas and electric fixtures, carpeting, floor
coverings, underpadding, elevators, escalators, partitions, mantels, built-in
mirrors, window shades, blinds, draperies, screens, storm sash, awnings,
signs, 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
(b) 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 the
Premises or 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;
(c) return premiums or other payments upon any insurance any time
provided for the benefit of or naming METLIFE, and refunds or rebates of taxes
or assessments on the Premises;
(d) 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 the Premises including,
without limitation, all rents, issues, profits and other revenues and income
therefrom and from the renting, leasing or bailment of Improvements and
building 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;
(e) plans, specifications, contracts and agreements relating to the
design or construction of the Improvements; Borrower's rights under any
payment, performance, or other bond in connection with the design or
construction 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 the Improvements;
(f) all contracts, accounts, rights, claims or causes of action
pertaining to or affecting 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 the Premises or Improvements;
all management contracts, service or supply contracts, deposits, general
intangibles (including without limitation trademarks, trade names and
symbols), permits, licenses, franchises and certificates pertaining to or
affecting the Premises or the Improvements; and all commitments or agreements,
now or hereafter in existence, intended by the obliger thereof to provide
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Borrower with proceeds to satisfy the loan evidenced hereby or improve the
Premises or Improvements, and the right to receive all proceeds due under such
commitments or agreements including refundable deposits and fees;
(g) all books, records, surveys, reports and other documents related
to the Premises, the Improvements, the Leases, or other items of collateral
described herein; and
(h) 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, and any subsequent
reference thereto in this Instrument, is exclusive of (i) any furniture,
furnishings or trade fixtures owned and supplied by tenants of the Premises;
and (ii) any inventory, trade fixtures, the removal of which would not cause
damage to the Premises, cash registers, furniture, furnishings and machinery,
equipment, tooling and other items of personal property used in the operation
of Borrower's business, rather than the maintenance, repair or operation 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 METLIFE (a) the repayment of the indebtedness evidenced
by Borrower's note dated of even date herewith in the principal sum of Two
Million Eight Hundred Eighty-Seven Thousand Five Hundred Dollars
($2,887,500.00), with interest thereon as set forth in the note, a copy of
which is attached as Exhibit B, and all renewals, extensions and modifications
thereof (herein "Note"); (b) the repayment of any future advances, with
interest thereon, made by METLIFE to Borrower pursuant to Section 28 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;
and (e) the repayment of all sums now or hereafter owing to METLIFE by
Borrower pursuant to any instrument which recites that it is secured hereby.
The indebtedness and obligations described in clauses (a)-(e) above are
collectively referred to herein as the "Indebtedness." The Note, this
Instrument, and all other documents evidencing, securing or guarantying the
Indebtedness (except any Certificate and Indemnity Agreement Regarding
Hazardous Substances), as the same may be modified or amended from time to
time, are referred to herein as the "Loan Documents. The terms of the Note
secured hereby may provide that the interest rate or payment terms or balance
due may be indexed, adjusted, renewed, or renegotiated from time to time, and
this Instrument shall continue to secure the Note 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 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
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convey the other Property, that the Property is unencumbered except as
disclosed in writing to and approved by METLIFE prior to the date hereof, and
that Borrower will warrant and forever defend the title to the Property
against all claims and demands, subject only to the permitted exceptions set
forth in Schedule 1 attached hereto.
Borrower represents, warrants, covenants and agrees for the benefit
of METLIFE 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. Upon the
occurrence of an Event of Default (hereinafter defined), and at METLIFE's sole
option at any time thereafter, Borrower shall pay in addition to each monthly
payment on the Note, one-twelfth 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
METLIFE in its sole discretion), to be held by METLIFE without interest to
Borrower, for the payment of such obligations.
If the amount of such additional payments held by METLIFE ("Funds")
at the time of the annual accounting thereof shall exceed the amount deemed
necessary by METLIFE 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 METLIFE shall be less than
the amount deemed necessary by METLIFE to pay Impositions as they fall due,
Borrower shall pay to METLIFE any amount necessary to make up the deficiency
within thirty (30) days after notice from METLIFE to Borrower requesting
payment thereof.
Upon Borrower's breach of any covenant or agreement of Borrower in
this Instrument, METLIFE may apply, in any amount and in any order as METLIFE
shall determine in METLIFE's sole discretion, any Funds held by METLIFE at the
time of application (i) to pay Impositions which are now or will hereafter
become due, or (ii) as a credit against sums secured by this Instrument. Upon
payment in full of all sums secured by this Instrument, METLIFE shall refund
to Borrower any Funds held by METLIFE.
3. APPLICATION OF PAYMENTS. Unless applicable law provides
otherwise, each complete installment payment received by METLIFE from Borrower
under the Note or this Instrument shall be applied by METLIFE first in payment
of amounts payable to METLIFE by Borrower under Section 2 hereof, then to
interest payable on the Note, then to principal of the Note, and then to
interest and principal on any Future Advances in such order as METLIFE, at
METLIFE's sole discretion, shall determine. Upon Borrower's breach of any
covenant or agreement of Borrower in this Instrument, METLIFE may apply, in
any amount and in any order as METLIFE shall determine in METLIFE's sole
discretion, any payments received by METLIFE under the Note or this
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Instrument. Any partial payment received by METLIFE shall, at METLIFE's
option, be held in a non-interest bearing account until METLIFE receives funds
sufficient to equal a complete installment payment.
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, when due, directly to the payee
thereof, or in such other manner as METLIFE may designate in writing. If
requested by METLIFE, Borrower shall promptly furnish to METLIFE all notices
of Impositions which become due, and in the event Borrower shall make payment
directly, Borrower shall promptly furnish to METLIFE 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 METLIFE's prior written
permission, Borrower shall not allow any lien inferior to this Instrument to
be perfected against the Property. If any lien inferior to this Instrument is
filed against the Property without METLIFE's prior written permission and
without the consent of Borrower, 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 METLIFE.
5. INSURANCE. Borrower shall obtain and maintain the following
types of insurance upon and relating to the Property:
(a) "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 $5,000 and with co-insurance limited
to a maximum of 10% of the amount of the policy), naming METLIFE
under a lender's loss payee endorsement (form 438BFU or equivalent)
and including agreed amount, inflation guard, replacement cost and
waiver of subrogation endorsements;
(b) Comprehensive general liability insurance in an amount not
less than $2,000,000.00 insuring against personal injury, death and
property damage and naming METLIFE as additional insured;
(c) Business interruption insurance covering loss of rental or
other income (including all expenses payable by tenants) for up to
six (6) months; and
(d) Such other types of insurance or endorsements to existing
insurance as may be required from time to time by METLIFE.
Upon the request of METLIFE, Borrower shall increase the coverage
under any of the insurance policies required to be maintained hereunder or
otherwise modify such policies in accordance with METLIFE's 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 METLIFE. If and to the extent that the Property is located within an area
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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 METLIFE, along with evidence of payment in full of all
premiums required thereunder, contemporaneously with Borrower's execution of
this Instrument. All such certificates shall be in form acceptable to METLIFE
and shall require the insurance company to give to METLIFE 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 METLIFE, along with evidence of
the payment in full of all premiums required thereunder, at least fifteen (15)
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,
METLIFE 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
METLIFE, and upon foreclosure hereunder, METLIFE shall become the owner
thereof. METLIFE 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 Borrower,
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 METLIFE. All insurance
proceeds paid or payable in connection with any Loss shall be paid to METLIFE.
If (i) no Event of Default has occurred and is continuing hereunder, (ii)
Borrower provides evidence satisfactory to METLIFE of its ability to pay all
amounts becoming due under the Note during the pendency of any restoration or
repairs to or replacement of the Property, (iii) the available insurance
proceeds are, in METLIFE's judgment, sufficient to fully and completely
restore, repair or replace the Property, and (iv) Borrower provides evidence
satisfactory to METLIFE that none of the tenants of the Property 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, or (b) to the
payment of the Indebtedness in such order as METLIFE may elect. If an Event of
Default has occurred and is continuing hereunder at the time of such Loss, if
METLIFE determines that Borrower will be unable to pay all amounts becoming
due under the Note during the pendency of any restoration or repairs to or
replacement of the Property, if the available insurance proceeds are
insufficient, in METLIFE's judgment, to fully and completely restore, repair
or replace the Property or if METLIFE believes that one or more tenants of the
Property 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
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proceeds payable with respect to such Loss will be applied to the payment of
the Indebtedness, or if so instructed by METLIFE, 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 METLIFE in writing.
Notwithstanding anything contained herein to the contrary, in the event the
insurance proceeds received by METLIFE following any Loss are insufficient in
METLIFE's 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 METLIFE such additional sums as METLIFE
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 METLIFE may elect.
6. PRESERVATION AND MAINTENANCE OF 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
METLIFE 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 and secured hereby, in good repair and shall replace fixtures,
equipment, machinery and appliances on the Property when necessary to keep
such items in good repair, (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
METLIFE, 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 METLIFE pursuant to a contract approved by
METLIFE in writing, unless such requirement shall be waived by METLIFE 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 METLIFE of
and, unless otherwise directed in writing by METLIFE, appear in and defend any
action or proceeding purporting to affect the Property, the security of this
Instrument or the rights or powers of METLIFE hereunder. Neither Borrower nor
any tenant or other person, without the written approval of METLIFE, 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.
Borrower represents, warrants and covenants that (i) the Property is,
to its current actual knowledge, and shall be in compliance with the Americans
with Disabilities Act of 1990 and all of the regulations promulgated
thereunder, as the same may be amended from time to time; and (ii) it shall
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secure permanent certificates of occupancy for the Property no later than
August 31, 1996.
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 METLIFE of any default by lessor under the ground lease or of any
notice received by Borrower from such lessor of any default under the ground
lease by Borrower, (iii) shall exercise any option to renew or extend the
ground lease and give written confirmation thereof to METLIFE within thirty
(30) days after such option becomes exercisable, (iv) shall give immediate
written notice to METLIFE of the commencement of any remedial proceedings
under the ground lease by any party thereto and, if required by METLIFE, shall
permit METLIFE as Borrower's attorney-in-fact to control and act for Borrower
in any such remedial proceedings and (v) shall within thirty (30) days after
request by METLIFE obtain from the lessor under the ground lease and deliver
to METLIFE a lessor's estoppel certificate in form and substance acceptable to
METLIFE. Borrower hereby expressly transfers and assigns to METLIFE the
benefit of all covenants contained in the ground lease, whether or not such
covenants run with the land, but METLIFE shall have no liability with respect
to such covenants or any other covenants contained in the ground lease.
Borrower shall neither surrender the leasehold estate and 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
METLIFE, 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 METLIFE
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.
7. USE OF PROPERTY. Unless required by applicable law or unless
METLIFE 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 METLIFE's prior
written consent, (i) initiate or acquiesce in a change in the zoning
classification (including any variance under any existing zoning ordinance
applicable to the Property), (ii) permit the use of the Property to become a
non-conforming use under applicable zoning ordinances, (iii) file any
subdivision or parcel map affecting the Property, or (iv) amend, modify or
consent to any easement or covenants, conditions and restrictions pertaining
to the Property.
8. PROTECTION OF METLIFE'S 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 METLIFE therein, including, but not limited to, eminent
domain, insolvency, code enforcement, or arrangements or proceedings involving
a bankrupt or decedent, then METLIFE at METLIFE's option may make such
appearances, disburse such sums and take such action as METLIFE deems
necessary, in its sole discretion, to protect METLIFE's interest, including,
but not limited to, (i) disbursement Of attorneys' fees, (ii) entry upon the
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Property to make repairs, (iii) procurement of satisfactory insurance as
provided in Section 5 hereof, and (iv) 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 METLIFE pursuant to this Section 8, with
interest thereon, shall become additional Indebtedness of Borrower secured by
this Instrument. Unless Borrower and METLIFE 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 highest rate which may be collected from
Borrower under applicable law or, at METLIFE's option, the rate stated in the
Note. Borrower hereby covenants and agrees that METLIFE 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 METLIFE to
incur any expense or take any action hereunder.
9. INSPECTION. METLIFE may make or cause to be made reasonable
entries upon the Property to inspect the interior and exterior thereof.
10. FINANCIAL DATA. Borrower will furnish to METLIFE, and will cause
any guarantor of the Indebtedness to furnish METLIFE on request, within ninety
(90) days after the close of its fiscal year (i) annual balance sheet and
profit and loss statements prepared in accordance with generally accepted
accounting principles and practices consistently applied and, if METLIFE so
requires, accompanied by the annual audit report of an independent certified
public accountant reasonably acceptable to METLIFE, (ii) an annual operating
statement, together with a complete rent roll and other supporting data
reflecting all material information with respect to the operation of the
Property and Improvements, and (iii) all other financial information and
reports that METLIFE may from time to time reasonably request, including, if
METLIFE so requires, income tax returns of Borrower and any guarantor of any
portion of the Indebtedness, and financial statements of any tenants
designated by METLIFE.
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
METLIFE who shall have the right, in its sole and absolute discretion, to
apply the amounts so received against (a) the costs and expenses of METLIFE,
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 METLIFE of its
ability to pay all amounts becoming due under the Note during the pendency of
any restoration or repairs to or replacement of the Property, (iii) METLIFE
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 METLIFE's satisfaction so that the
9
aggregate of such sums and the proceeds of such award will be sufficient for
such purpose), and (iv) Borrower provides evidence satisfactory to METLIFE
that none of the tenants of the Property will terminate their lease agreements
as a result of either the condemnation or taking or the repairs to or
replacement of the Property, the proceeds of such award, together with
additional sums provided by Borrower, shall be placed in a separate account
for the benefit of METLIFE 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 METLIFE. 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 METLIFE may
elect. To enforce its rights hereunder, METLIFE shall be entitled to
participate in and control any condemnation proceedings and to be represented
therein by counsel of its own choice, and Borrower will deliver, or cause to
be delivered to METLIFE such instruments as may be requested by it from time
to time to permit such participation. In the event METLIFE, as a result of any
such judgment, decree or award, believes that the payment or performance of
any of the Indebtedness is impaired, METLIFE may declare all of the
Indebtedness immediately due and payable.
12. BORROWER AND LIEN NOT RELEASED. From time to time, METLIFE may,
at METLIFE's option, without giving notice to or obtaining the consent of
Borrower, Borrower's successors or assigns or of any junior lienholder or
guarantors, without liability on METLIFE's part and notwithstanding 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 change the amount of the monthly
installments payable thereunder. Any actions taken by METLIFE pursuant to the
terms of this Section 12 shall not affect the obligation of Borrower or
Borrower'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 METLIFE a service charge,
together with such title insurance premiums and attorneys' fees as may be
incurred at METLIFE's option, for any such action if taken at Borrower's
request.
13. FORBEARANCE BY METLIFE NOT A WAIVER. Any forbearance by METLIFE
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 METLIFE of payment of any sum secured by
this Instrument after the due date of such payment shall not be a waiver of
10
METLIFE's 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
METLIFE shall not be a waiver of METLIFE's right to accelerate the maturity of
the Indebtedness secured by this Instrument, nor shall METLIFE's receipt of
any awards, proceeds or damages under Sections 5 and 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 agreement pursuant to the Uniform Commercial Code
for any 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 METLIFE a first and
prior security interest in all of the Property that constitutes personally,
whether now owned or hereafter acquired. Borrower agrees that METLIFE may file
this Instrument, or a reproduction thereof, in the real estate records or
other appropriate index, 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, Borrower agrees to execute and deliver
to METLIFE, upon METLIFE's request, any financing statements, as well as
extensions, renewals and amendments thereof, and reproductions of this
Instrument in such form as METLIFE 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 searches
for financing statements METLIFE may require. Without the prior written
consent of METLIFE, 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 Borrower'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, METLIFE shall
have the remedies of a secured party under the Uniform Commercial Code, and
METLIFE may also invoke the remedies provided in Section 26 of this Instrument
as to such items. In exercising any of said remedies METLIFE 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 METLIFE's 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 METLIFE, Borrower shall
prepare and deliver to METLIFE 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 Borrower'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 METLIFE.
All Leases of the Property shall specifically provide that such Leases are
subordinate to this Instrument; that the tenant attorns to METLIFE, such
attornment to be effective upon METLIFE's acquisition of title to the
11
Property; that the tenant agrees to execute such further evidences of
attornment as METLIFE may from time to time request; that the attornment of
the tenant shall not be terminated by foreclosure; and that METLIFE may, at
METLIFE's option, accept or resect such attornments. Borrower shall not,
without METLIFE's 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 Borrower 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 (i) take such steps as shall be reasonably calculated to
prevent the accrual of any right to a set-off against rent, (ii) immediately
notify METLIFE thereof in writing and of the amount of said set-offs, and
(iii) 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 METLIFE's
receipt of notice of the occurrence of any default or violation by Borrower of
any of its obligations under the Leases, METLIFE 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 METLIFE may deem necessary to cure the default or violation by
Borrower under the Leases. The costs incurred by METLIFE in taking any such
actions pursuant to this paragraph shall become part of the Indebtedness,
shall bear interest at the rate provided in the Note, and shall be payable by
Borrower to METLIFE on demand. METLIFE shall have no liability to Borrower or
to any third party for any actions taken by METLIFE or not taken pursuant to
this paragraph.
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.
17. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN BORROWER;
ASSUMPTION. METLIFE may, at its option, declare all sums secured by this
Instrument to be immediately due and payable, and METLIFE may invoke any
remedies permitted by Section 26 of this Instrument, if title to the Property
is changed without the prior written consent of METLIFE, which consent shall
be at METLIFE's sole discretion. Any transfer of any interest in the Property
or in the income therefrom, by sale, lease (except for leases to tenants in
the ordinary course of managing income property which are approved by METLIFE
pursuant to Section 15 of this Instrument), 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 the ownership
interests in Borrower (including any change in the ownership interests of any
legal entities which comprise or control Borrower), except transfers and
changes in ownership by devise or descent, shall be considered a change of
title. METLIFE shall have the right to condition its consent to any proposed
sale or transfer described in this Section 17 upon, among other things,
METLIFE's 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 METLIFE may require, including,
if required by METLIFE, the imposition of an assumption fee of one percent
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(1%) of the then outstanding balance of the Indebtedness. Consent by METLIFE
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
Borrower shall relieve Borrower of liability for payment of the Indebtedness.
Notwithstanding anything herein to the contrary, the foregoing limitations on
transfer shall not apply to the sale, transfer or assignment of equity
securities in Borrower, so long as such assignments, transfers and sales of
the equity securities of Borrower do not result in the sale, transfer or
assignment of fifty percent (50%) or more of the equity securities of
Borrower within any twelve (12) month period; provided, however, the
immediately preceding restriction shall not apply to (a) transactions effected
in the ordinary course of business on any registered stock exchange; or (b)
the issuance by Borrower of additional equity securities or warrants or
options to purchase additional equity securities provided that no person or
entity acquires fifty percent (50%) or more of the voting stock of Borrower as
a result thereof.
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 the
Note shall be in writing, signed by the party giving such notice, election,
demand or request, 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 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 (i) the date of actual receipt, (ii) three
(3) days after the date of mailing by registered or certified mail, (iii) one
(1) 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 (iv) 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 METLIFE and Borrower, 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 Borrowers obligations
hereunder. In exercising any rights hereunder or taking any actions provided
for herein, METLIFE may act through its employees, agents or independent
contractors as authorized by METLIFE. 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. WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby waives the
right to assert any statute of limitations as a bar to the enforcement of the
lien of this Instrument or to any action brought to enforce the Note or any
other obligation secured by this Instrument.
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21. WAIVER OF MARSHALLING. Notwithstanding the existence of any
other security interests in the Property held by METLIFE or by any other
party, METLIFE shall have the right to determine the order in which any or all
of the Property shall be subjected to the remedies provided herein. METLIFE
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 METLIFE a Phase I
Environmental Assessment dated January 16, 1996, as supplemented by that Phase
II Environmental Assessment dated May 21, 1996 and those certain letters to
Xx. Xxxxxxx X. Xxxxxxxx dated May 23, 1996 and May 30, 1996 and prepared by
Xxxxxxx Environmental Consultants, that certain Phase II Environmental
Assessment dated March 1, 1996 and prepared by Missaukee Surveying &
Engineering, Inc. and an Environmental Questionnaire dated May 20, 1996
(collectively, the "Report"). Except as disclosed to METLIFE 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 METLIFE 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 METLIFE at any time believes 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
immediately upon request by METLIEE, Borrower shall obtain and furnish to
METLIFE, at Borrowers sole cost and expense, an environmental audit and
inspection of the Property from an expert satisfactory to METLIFE. In the
event that Borrower fails to immediately obtain such audit or inspection,
METLIFE or its agents may perform or obtain such audit or inspection at
Borrower's sole cost and expense. METLIFE 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 METLIFE as provided in Section 23
below for the full amount of all
14
costs and expenses incurred by METLIFE prior to METLIFE acquiring title to the
Property 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 METLIFE in the position of an
owner of the Property prior to any acquisition of the Property by METLIFE. The
rights granted to METLIFE herein and in the other Loan Documents are granted
solely for the protection of METLIFE's lien and security interest covering the
Property, and do not grant to METLIFE the right to control Borrower'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 METLIFE all sums advanced by METLIFE and all
costs and expenses incurred by METLIFE in taking any actions pursuant to the
Loan Documents including attorneys' fees and disbursements, accountants' fees,
appraisal and inspection fees and the costs for title reports and guaranties,
together with interest thereon at the rate applicable under the Note after an
Event of Default from the date such costs were advanced or incurred. All such
costs and expenses incurred by METLIFE, 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 Borrower fails
to pay any such advances, costs and expenses and interest thereon, METLIFE may
apply any 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. Borrower, for good and valuable
consideration, the receipt of which is hereby acknowledged, to secure the
Indebtedness, does hereby absolutely and unconditionally grant, bargain, sell,
transfer, assign, convey, set over and deliver unto METLIFE all right, title
and interest of Borrower 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 METLIFE as
follows:
(a) 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 METLIFE from fully exercising its rights with respect to the
Leases under any of the terms, covenants and conditions of this
Instrument.
(b) 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 METLIFE. The terms and
15
conditions of the Leases have not been and shall not be waived in
any manner whatsoever except as approved in writing by METLIFE.
(c) Borrower shall not materially alter the term or the amount
of rent payable under any Lease without prior written notice to
METLIFE and METLIFE's consent, which shall not be unreasonably
withheld.
(d) To the best of Borrower's knowledge, 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.
(e) Borrower shall give prompt written notice to METLIFE 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.
(f) 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.
(g) Borrower will not permit any Lease to become subordinate
to any lien other than the lien of this Instrument.
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, METLIFE 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. METLIFE shall
thereafter continue to receive and collect all such rents, income and profits,
as long as such default or defaults shall exist, and during the pendency of
any foreclosure proceedings.
Borrower hereby irrevocably appoints METLIFE its true and lawful
attorney with power of substitution and with full power for METLIFE 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 METLIFE may deem 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 METLIFE, to pay any and all amounts due Borrower
pursuant to the Leases to METLIFE or such nominee as METLIFE 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.
16
Upon the occurrence of any Event of Default, from and after service
of a Notice, METLIFE 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 METLIFE 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 METLIFE may exclude
Borrower, its agents and servants, wholly therefrom. Borrower hereby grants
full power and authority to METLIFE 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 METLIFE, 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 METLIFE on the Note and
this Instrument, all in such order as METLIFE may determine. METLIFE 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
METLIFE, nor shall it operate to make METLIFE 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"):
(a) Failure of or refusal by Borrower to pay any portion of
the sums secured by this Instrument when due, and such failure or
refusal shall continue for a period of ten (10) days after written
notice is given to Borrower by METLIFE specifying such failure; or
(b) 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 for a
period of ten (10) days after written notice is given to Borrower by
METLIFE specifying such failure; or
(c) Failure by Borrower to observe or perform any obligations
of Borrower to METLIFE on or with respect to any transactions,
debts,
17
undertakings or agreements other than the transaction evidenced by
the Note; or
(d) Failure of Borrower to make any payment or perform any
obligation under any superior liens or encumbrances on the Property,
within the time required thereunder, or commencement of any suit or
other action to foreclose any superior liens or encumbrances; or
(e) Failure by Borrower to observe or perform any of its
obligations under any of the Leases; or
(f) The Property is transferred or any agreement to transfer
any part or interest in the Property in any manner whatsoever is
made or entered into without the prior written consent of METLIFE,
except as specifically allowed under this Instrument, including
without limitation creating or allowing any liens on the Property or
leasing any portion of the Property; or
(g) Filing by Borrower of a voluntary petition in bankruptcy
or filing by Borrower 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 in the
appointment of any trustee, receiver, custodian, conservator or
liquidator for Borrower, any part of the Property, or any of the
income or rents of the Property, or the making by Borrower of any
general assignment for the benefit of creditors, or the inability of
or failure by Borrower to pay its debts generally as they become
due, or the insolvency on a balance sheet basis or business failure
of Borrower, 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 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 to any governmental
body of insolvency or suspension of operations; or
(h) Filing of a petition against Borrower 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
relief for debts, or the appointment of any trustee, receiver,
custodian, conservator or liquidator of Borrower, 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
(i) The institution of any proceeding for the dissolution or
termination of Borrower voluntarily, involuntarily, or by operation
of law, or the death of Borrower; or
18
(j) A material adverse change occurs in the assets,
liabilities or net worth of Borrower from the assets, liabilities or
net worth of Borrower previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to
METLIFE by or on behalf of Borrower under the Note, this Instrument,
any of the other Loan Documents or the Certificate and Indemnity
Agreement Regarding Hazardous Substances, shall prove to have been
false or misleading in any material respect; or
(l) Failure of Borrower to observe or perform any other
covenant or condition contained in the Note and such default shall
continue for thirty (30)-days after notice is given to Borrower
specifying the nature of the failure. No notice of default and no
opportunity to cure shall be required if during the prior twelve
(12) months METLIFE has already sent a notice to Borrower concerning
default in performance of the same obligation; or
(m) Failure of Borrower to observe or perform any other
obligation under this Instrument, any other Loan Document or the
Certificate and Indemnity Regarding Hazardous Substances when such
observance or performance is due, and such failure shall continue
beyond the applicable cure period set forth in such Loan Document,
or if the default cannot be cured within such applicable cure
period, Borrower fails within such time to commence and pursue
curative action with reasonable diligence or fails at any time after
expiration of such applicable cure period to continue with
reasonable diligence all necessary curative actions. No notice of
default and no opportunity to cure shall be required if during the
prior twelve (12) months METLIFE has already sent a notice to
Borrower concerning default in performance of the same obligation;
or
(n) Any of the foregoing events occur with respect to any
tenant of the Property, or with respect to any guarantor of any
tenant's obligations relating to the Property.
26. RIGHTS AND REMEDIES ON DEFAULT.
26.1 Remedies. Upon the occurrence of any Event of Default and at any
time thereafter, METLIFE may exercise any one or more of the following rights
and remedies:
(a) METLIFE may declare all sums secured by this Instrument
immediately due and payable, including any prepayment premium which
Borrower would be required to pay.
(b) METLIFE shall have the right to foreclose this Instrument
in accordance with applicable law.
The commencement by METLIFE of foreclosure proceedings by
advertisement or in equity shall be deemed an exercise by METLIFE of
19
its option to accelerate the due date of all sums secured hereby.
Borrower hereby grants power to METLIFE, in the event of the
occurrence of an Event of Default, to grant, bargain, sell, release
and convey the Premises at public auction or vendue, and upon such
sale to execute and deliver to the purchaser(s) instruments of
conveyance pursuant to the terms hereof and to the applicable laws.
Borrower acknowledges that the foregoing sentence confers a power
of sale upon METLIFE, and that upon an Event of Default this
Mortgage may be foreclosed by advertisement as described below and
in the applicable Michigan statutes. Borrower understands that upon
an Event of Default, METLIFE is hereby authorized and empowered to
sell the Premises, or cause the same to be sold and to convey the
same to the purchaser in any lawful manner, including but not
limited to that provided by Chapter 32 of the Revised Judicature
Act of Michigan, entitled "Foreclosure of Mortgage by
Advertisement", which permits METLIFE to sell the Premises without
affording Borrower a hearing, or giving Borrower actual personal
notice. The only notice required under such Chapter 32 is to
publish notice in a local newspaper and to post a copy of the
notice on the Premises.
(c) In the event of any foreclosure, to the extent permitted
by applicable law, METLIFE 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 METLIFE.
(d) With respect to all or any part of the Property that
constitutes personally, METLIFE shall have all rights and remedies
of secured party under the Uniform Commercial Code.
(e) METLIFE 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. METLIFE's right to the appointment of a receiver shall exist
whether or not apparent value of the Property exceeds the sums due
under this Instrument by a substantial amount. Employment by METLIFE
shall not disqualify a person from serving as a receiver.
(f) In the event Borrower remains in possession of the
Property after the Property is sold as provided above or METLIFE
otherwise becomes entitled to possession of the Property upon
default of Borrower, Borrower shall become a tenant at will of
METLIFE or the purchaser of the Property and shall pay a reasonable
rental for use of the Property while in Borrower's possession.
20
(g) METLIFE 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.
(h) METLIFE shall have all the rights and remedies set forth
in Sections 23 and 24.
26.2 Sale of the Property. In exercising its rights and remedies,
METLIFE may, at METLIFE's 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. METLIFE may bid at any
public sale on all or any portion of the Property.
26.3 Notice of Sale. METLIFE 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 notices in a nonjudicial foreclosure.
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 METLIFE to pursue any remedy
shall not exclude pursuit of any other remedy, and all remedies of METLIFE
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 METLIFE's 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, METLIFE 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 METLIFE's costs incurred in connection with
satisfaction of this Instrument.
28. FUTURE ADVANCES. Upon request of Borrower, METLIFE, at METLIFE's
option so long as this Instrument secures Indebtedness held by METLIFE, 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.
29. IMPOSITION OF TAX BY STATE.
29.1 State Taxes Covered. The following constitute state taxes to
which this Section applies:
(a) A specific tax upon mortgages or upon all or any part of
the indebtedness secured by a mortgage.
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(b) A specific tax on a mortgagor which the taxpayer is
authorized or required to deduct from payments on the indebtedness
secured by a mortgage.
(c) A tax on a mortgage chargeable against the mortgagee or
the holder of the note secured.
(d) A specific tax on all or any portion of the indebtedness
or on payments of principal and interest made by a mortgagor.
29.2 Remedies. If any state tax to which this Section applies is
enacted subsequent to the date of this Instrument, this shall have the same
effect as an Event of Default, and METLIFE may exercise any or all of the
remedies available to it unless the following conditions are met:
(a) Borrower may lawfully pay the tax or charge imposed by
state tax, and
(b) Borrower pays the tax or charge within thirty (30) days
after notice from METLIFE that the tax law has been enacted.
30. 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, and title insurance, incurred by
METLIFE that are necessary at any time in METLIFE's 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.
31. 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 or the Note conflicts with applicable
law, such conflict shall not affect other provisions of this Instrument or the
Note which can be given effect without the conflicting provision, and to this
end the provisions of this Instrument and the Note are declared to be
severable.
32. TIME OF ESSENCE. Time is of the essence of this Instrument.
33. 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
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or termination is sought. Any agreement subsequently made by Borrower or
METLIFE relating to this Instrument shall be superior to the rights of the
holder of any intervening lien or encumbrance.
34. NO OFFSET. Borrower's obligation to make payments and perform all
obligations, covenants and warranties under this Instrument and under the Note
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 METLIFE or any entity
participating in making the loan secured hereby. The foregoing provisions of
this section, however, do not constitute a waiver of any claim or demand which
Borrower or any guarantor may have in damages or otherwise against METLIFE 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 METLIFE.
35. AUTHORIZATION TO INSERT. Borrower authorizes METLIFE or its agent
to insert in the spaces provided herein the amount of the Note, 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 of the foregoing information is not typed in on this document.
36. MAXIMUM INTEREST CHARGES. Notwithstanding anything contained
herein or in any of the Loan Documents to the contrary, in no event shall
METLIFE be entitled to receive interest on the loan secured by this Instrument
(the "Loan") in amounts which, when added to all of the other interest
charged, paid to or received by METLIFE on the Loan, causes the rate of
interest on the Loan to exceed the highest lawful rate. Borrower and METLIFE
intend to comply with the applicable law governing the highest lawful rate and
the maximum amount of interest payable on or in connection with the Loan. If
the applicable law is ever judicially interpreted so as to render usurious any
amount called for under the Loan Documents, or contracted for, charged, taken,
reserved or received with respect to the Loan, or if acceleration of the final
maturity date of the Loan or if any prepayment by Borrower results in Borrower
having paid or demand having been made on Borrower to pay, any interest in
excess of the amount permitted by applicable law, then all excess amounts
theretofore collected by METLIFE shall be credited on the principal balance of
the Note (or, if the Note has been or would thereby be paid in full, such
excess amounts shall be refunded to Borrower), and the provisions of the Note,
this Instrument and any demand on Borrower shall immediately be deemed
reformed and the amounts thereafter collectible thereunder and hereunder shall
be reduced, without the necessity of the execution of any new document, so as
to comply with the applicable law, but so as to permit the recovery of the
fullest amount otherwise called for thereunder and hereunder. The right to
accelerate the final maturity date of the Loan does not include the right to
accelerate any interest which has not otherwise accrued on the date of such
acceleration, and METLIFE does not intend to collect any unearned interest in
the event of acceleration. All sums paid or agreed to be paid to METLIFE for
the use, forbearance or detention of the Loan shall, to the extent permitted
by applicable law, be amortized, prorated, allocated and spread through the
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full term of the Loan until payment in full so that the rate or amount of
interest on account of the Loan does not exceed the applicable usury ceiling.
By execution of this Instrument, Borrower acknowledges that it believes the
Loan to be nonusurious and agreed that if, at any time, Borrower should have
reason to believe that the Loan is in fact usurious, it will give METLIFE
written notice of its belief and the reasons why Borrower believes the Loan to
be usurious, and Borrower agrees that METLIFE shall have ninety (90) days
following its receipt of such written notice in which to make appropriate
refund or other adjustment in order to correct such condition if it in fact
exists.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD
BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ABE ENFORCEABLE. NO
OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE
LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER
WRITTEN AGREEMENT.
IN WITNESS WHEREOF, Borrower has executed this Instrument or has
caused the same to be executed by its representatives whereunto duly
authorized.
WITNESSES: BORROWER:
/s/ Xxxx X. Xxxxx SECOM GENERAL CORPORATION,
-------------------------- a Delaware of corporation
Print Name: Xxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxx
-------------------------- ----------------------------
Print Name: Xxxxxxx X. Xxxxx Print Name: Xxxxx X. Morczak
Its: Chief Financial Officer
--------------------------
STATE OF MICHIGAN
) ss.
COUNTY OF XXXXX
The foregoing instrument was acknowledged before me this 24th day of
May, 1996, by /s/ Xxxxx X. Xxxxxxx, the Chief Financial Officer of SECOM
GENERAL CORPORATION, a Delaware corporation, on behalf of said entity.
/s/ Xxxxxxx X. Xxxxx
--------------------------
Notary Public
______________County,_____
My Commission Expires:____
XXXXXXX X. XXXXX
Notary Public, Xxxxx County, MI
My Commission Expires Sept. 23, 1999
24
