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EXHIBIT 10.5
OHIO FORM
OPEN-END MORTGAGE, SECURITY
AGREEMENT AND ASSIGNMENT OF RENTS
Maximum principal indebtedness not to exceed $140,000,000
THIS OPEN-END MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS, dated
as of March 24, 1997, by KEY PLASTICS, INC., a Michigan corporation, whose
address is 00000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxx, Xxxxxxxx 00000 (the
"Mortgagor"), to NBD BANK, a Michigan banking corporation, whose address is 000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (the "Mortgagee"), as agent for the
benefit of itself and the lenders (the "Lenders") which are parties to the
Credit Agreement defined below.
RECITALS:
A. The Mortgagor has entered into a Credit Agreement dated as of March 24,
1997 (as amended or modified from time to time, including any agreement entered
into in substitution therefor, the "Credit Agreement") pursuant to which the
Lenders agreed, subject to the terms and conditions thereof, to extend credit
to the Mortgagor up to a maximum principal amount outstanding at any time equal
to One Hundred and Forty Million and No/100 Dollars ($140,000,000) maturing on
or be fore September 24, 2004, as such date may be extended by agreement of the
parties to the Credit Agreement.
B. As a condition to the effectiveness of the obligations of the Mortgagee
and the Lenders under the Credit Agreement, the Mortgagor is obligated, among
other things, to xxxxx x xxxx on the mortgaged premises hereinafter described.
WITNESSETH:
NOW, THEREFORE, to secure (a) the prompt and complete payment of all
Indebtedness and other obligations of the Mortgagor or any Subsidiary now or
hereafter owing to the Lenders or the Mortgagee under or on account of the
Credit Agreement, any Security Document or any letters or credit, notes or
other instruments issued to the Mortgagee or the Lenders pursuant thereto, (b)
the performance of the covenants under the Credit Agreement and the Security
Documents and any and all additional advances made by the Mortgagee to protect
or preserve the Mortgaged Premises (as defined below) or the lien or security
interest created hereby on the Mortgaged Premises, or for taxes, assessments,
or insurance premiums as hereinafter provided and as contemplated by Section
5301.233 of the Ohio Revised Code, and (c) the prompt and complete payment of
all obligations and performance of all covenants of the Mortgagor or any
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Subsidiary in connection with Swaps relating to Indebtedness under the Loan
Documents (including any interest accruing subsequent to any petition filed by
or against the Mortgagor or any Subsidiary under the U.S. Bankruptcy Code,
whether or not allowed), indemnity and reimbursement obligations, charges,
expenses, fees, reasonable attorneys' fees and disbursements and any other
amounts owing thereunder (all of the aforesaid Indebtedness, obligations and
liabilities of the Mortgagor and its Subsidiaries being herein called the
"Mortgage Indebtedness" and this Mortgage and all of the other documents,
agreements and instruments among the Mortgagor, the Subsidiaries, the Lenders,
the Mortgagee or any of them, evidencing or securing the repayment of, or
otherwise pertaining to, the Mortgage Indebtedness, including without
limitation the Credit Agreement, the Notes and the Security Documents, being
herein collectively called the "Loan Documents"), the Mortgagor does hereby
GRANT, MORTGAGE and WARRANT unto the Mortgagee, and its successors and assigns,
and grants a security interest in, the following described property (the
"Mortgaged Premises"):
(A). the land situated in the Village of Montpelier, County of Xxxxxxxx
and State of Ohio, more specifically described in Exhibit A hereto (the
"Land");
(B) all easements, rights-of-way, licenses and privileges, thereunto
belonging or in anywise appertaining, including without limitation all
Mortgagor's right, title and interest in and to those easements, rights-of-way,
licenses and privileges described in Exhibit A hereto, if any;
(C) all buildings and improvements now or hereafter situated upon the Land
or any part thereof;
(D) to the extent, if any, of Mortgagor's interests thereon, all minerals,
royalties, gas rights, water, water rights, water stock, flowers, shrubs, lawn
plants, crops, trees, timber and other emblements now or hereafter located on,
under or above all or any part of the Land;
(E) all and singular the tenements, hereditament and appurtenances
belonging or in anywise appertaining to the Land, and the reversion or
reversions, remainder and remainders thereof; and also all the estate, right,
title, interest, property, claim and demand whatsoever of Mortgagor, of, in and
to the same and of, in and to every part and parcel thereof;
(F) all the rents, issues and profits thereof under present or future
leases, or otherwise, which are hereby specifically assigned, transferred and
set over to Mortgagee, including, but not limited to, all rights conferred by
that certain Assignment of Real Estate Leases and Rentals from Mortgagor to
Mortgagee of even date herewith, if any, and including, but not limited to, all
cash or securities deposited under any such leases to secure performance by the
tenants of their obligations thereunder, whether said cash or securities are to
be held until the expiration of the terms of such leases or applied to one or
more of the installments of rent coming due thereunder;
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(G) all right, title and interest of Mortgagor, if any, in and to the land
lying in the bed of any street, road, avenue, alley or walkway, opened or
proposed or vacated, or any strip or xxxx, in front of or adjoining the Land;
(H) all machinery, apparatus, equipment, fittings, fixtures, and articles
of personal property of every kind and nature whatsoever, other than consumable
goods, now or hereafter located in or upon the Land or any part thereof and
used or useable in connection with any present or future operation of the Land
or any building or buildings now or hereafter on the Land and now owned or
hereafter acquired by Mortgagor (all of which is herein called "Equipment"),
including, but without limiting the generality of the foregoing, all lighting,
heating, cooling, ventilating, air-conditioning, incinerating, refrigerating,
plumbing, sprinkling, communicating and electrical systems, and the machinery,
appliances, fixtures and equipment pertaining thereto, it being understood and
agreed that all Equipment is part and parcel of the Land and appropriated to
the use of said real estate and, whether affixed or annexed or not, shall for
the purposes of this Mortgage, unless Mortgagee shall otherwise elect, be
deemed conclusively to be real estate and mortgaged hereby; and
(I) any and all awards or payments, including interest thereon, and the
right to receive the same, which may be made with respect to the Land and are
or will be payable to Mortgagor as a result of (a) the exercise of the right of
eminent domain, (b) the alteration of the grade of any street, (c) any loss of
or damage to any building or other improvement on the Land, (d) any other
injury to or decrease in the value of the Land or (e) any refund due on account
of the payment of real estate taxes, assessments or other charges levied
against or imposed upon the Land, to the extent of all amounts which may be
secured by this Mortgage at the date of receipt of any such award or payment by
Mortgagee, and of the reasonable counsel fees, costs and disbursements incurred
by Mortgagee in connection with the collection of such award or payment,
Mortgagor hereby agreeing to execute and deliver, from time to time, such
further instruments as may be reasonably requested by Mortgagee to confirm such
assignment to Mortgagee of any such award or payment.
TO HAVE AND TO HOLD the Mortgaged Premises, and each and every part
thereof, unto Mortgagee and its successors and assigns forever. Any reference
herein to the "Mortgaged Premises" shall, unless the context shall require
otherwise, be deemed to include and apply to the above described Land and said
buildings, improvements, Equipment, rents, issues, profits, leases, easements,
tenements, hereditament and appurtenances and all other rights, privileges and
interests hereinabove described.
SUBJECT only to those matters set forth in Exhibit B hereto ("Permitted
Encumbrances").
AND Mortgagor does hereby covenant and warrant as follows:
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1. Payment of Mortgage Indebtedness; Performance of Agreements. The
Mortgagor shall pay the principal of and interest on the Mortgage Indebtedness
according to the terms thereof, and will keep and perform all the covenants,
promises and agreements on its part to be performed in any and all Loan
Documents, all in the manner herein or therein set forth.
2. Covenants of Title. The Mortgagor has good and indefeasible title to
the Land in fee simple and has good and indefeasible title to the entire
Mortgaged Premises and with good right and full power to sell, mortgage and
convey the Mortgaged Premises, the Mortgaged Premises are free and clear of
liens and encumbrances except Permitted Encumbrances, whether presently
existing or which may hereafter be created in accordance with the terms hereof,
and Mortgagor will warrant and defend the Mortgaged Premises against all lawful
claims and demands whatsoever. The Mortgagee shall have the right, at its
option and at such time or times as it, in its sole discretion, shall deem
reasonably necessary, to take whatever action it may reasonably deem necessary
to defend or uphold the lien of this Mortgage or otherwise enforce any of the
rights of Mortgagee hereunder or any obligation secured hereby, including
without limitation, the right to institute appropriate legal proceedings for
such purposes.
3. Payment of Taxes, Assessments and Charges. The Mortgagor shall pay
when due, and before any interest, collection fees or penalties shall accrue,
all real estate taxes, special assessments, water and sewer charges or other
governmental charges and impositions levied or assessed with respect to the
Mortgaged Premises or any part thereof except to the extent that payment of any
of the foregoing is then being contested in good faith by appropriate legal
proceedings and with respect to which adequate financial reserves have been
established on the books and records of the Mortgagor. Should Mortgagor fail
to so pay such taxes, special assessments, water and sewer charges or other
governmental charges or impositions or establish such adequate financial
reserves, Mortgagee may, at its option, pay the same for the account of
Mortgagor.
4. Reserves for Taxes and Insurance Premiums. Upon the occurrence of any
Event of Default, Mortgagor shall pay to Mortgagee upon the request of
Mortgagee, installments of principal and interest, and in addition thereto,
installments of the taxes and assessments levied or to be levied upon the
Mortgaged Premises, and installments of the premiums that will become due and
payable to renew the insurance hereinafter provided, said installments to be
substantially equal and to be in such amount as will assure to Mortgagee that
not less than 30 days before the time when such taxes and premiums,
respectively, become due Mortgagor will have paid to Mortgagee a sufficient
amount to pay the same in full. Said amounts paid to Mortgagee hereunder need
not be segregated nor kept in a separate fund, and no interest shall be payable
thereon. Said amounts shall be held by Mortgagee as additional security for
the Mortgage Indebtedness and, except as provided in the following sentence, be
applied to the payment of said taxes and assessments when the same become due
and payable. Mortgagee may, at its option, but without any obligation on its
part so to do, apply said amounts upon said taxes and assessments or insurance
premiums or toward the payment of the Mortgage Indebtedness or any
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portion thereof, whether or not then due or payable. The Mortgagee shall
endeavor to notify the Mortgagor of how such amounts were applied, provided
however that the failure to give such notice shall not affect Mortgagee's
rights under this Mortgage.
Upon an assignment of the Mortgage, Mortgagee shall have the right to pay
over the balance of such deposits in its possession to the assignee and
Mortgagee shall thereupon be completely released from all liability with
respect to such deposits and Mortgagor or owner of the Mortgaged Premises shall
look solely to the assignee or transferee in reference thereto. This provision
shall apply to every transfer of such deposits to a new assignee. Upon full
payment and satisfaction of the Mortgage Indebtedness or at any prior time upon
the election of Mortgagee, the balance of the unapplied deposits in its
possession shall be paid over to the record owner of the Mortgaged Premises and
no other party shall have any right or claim thereto in any event, provided
that in the event of a foreclosure of the Mortgaged Premises, the purchaser at
such foreclosure shall have the right to receive such unapplied deposits. The
Mortgagor agrees, at Mortgagee's request, to deliver the aforesaid deposits to
such service or financial institution as Mortgagee shall from time to time
designate.
5. Payment of Other Obligations. The Mortgagor shall also pay any and all
other obligations, liabilities or debts which may become liens, security
interests, or encumbrances upon or charges against the Mortgaged Premises for
any repairs or improvements that are now completed or are in progress or which
may hereafter be made thereon, or for any other goods, services, or utilities
furnished to the Mortgaged Premises, and shall not permit any lien, security
interest, encumbrance or charge of any kind securing the repayment of borrowed
funds (including the deferred purchase price for any property) to accrue and
remain outstanding against the Mortgaged Premises or any part thereof, or any
improvements thereon other than Permitted Encumbrances, if any, except to the
extent that payment of any of the foregoing is then being contested in good
faith by appropriate legal proceedings and with respect to which adequate
financial reserves have been established on the books and records of the
Mortgagor.
6. Maintenance and Repair; Compliance with Laws; Inspection. The
Mortgagor will keep the Land and all the improvements thereon in good order and
repair, and Mortgagor expressly agrees that it will not do or permit waste on
the Land nor do any other act whereby the Mortgaged Premises will become less
valuable or the lien hereof may be impaired. Should Mortgagor fail to effect
the necessary repairs and such failure shall remain unremedied for 20 calendar
days after written notice thereof shall have been given to the Mortgagor by the
Mortgagee, Mortgagee may at its option make such repairs for the account of
Mortgagor. The Mortgagor will promptly comply, and cause the Mortgaged
Premises and the occupants or users thereof to comply, with all present and
future laws, ordinances, orders, rules and regulations and other requirements
of any governmental authority affecting the Mortgaged Premises or any part
thereof or the use or occupancy thereof and with all instruments and documents
of record or otherwise affecting the Mortgaged Premises, or any part thereof,
or the use or occupancy
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thereof. The Mortgagee, and any person authorized by Mortgagee, shall have the
right to enter upon and inspect the Mortgaged Premises at all reasonable times
and with reasonable notice.
7. Insurance. (a) The Mortgagor shall keep the buildings and other
improvements on the Land, or which may hereafter be erected thereon, constantly
insured for the benefit of Mortgagee with such company or companies as may be
reasonably acceptable to Mortgagee and in an amount reasonably satisfactory to
Mortgagee, which amount shall not be less than 100% of the then full
replacement cost of such building and improvements (exclusive of excavations,
foundations and footings), which policies shall be without deduction for
depreciation and be subject to the payment of a deductible not in excess of an
amount reasonably satisfactory to Mortgagee, until the Mortgage Indebtedness
and all interest thereon and all of the amounts due hereunder are fully paid,
against fire and such other hazards and risks customarily covered by the
standard form of "extended coverage" endorsements available in the State of
Ohio, and shall further provide flood insurance (if the Mortgaged Premises are
situated in an area designated as a flood hazard area by the Director of the
Federal Emergency Management Agency or as otherwise required by the Flood
Disaster Protection Act of 1973 and regulations issued thereunder), rent
insurance, in an amount not less than one year's gross rent derived from the
Mortgaged Premises, and such other appropriate insurance as Mortgagee may
reasonably require from time to time. All such policies shall include standard
mortgagee clauses in favor of Mortgagee and shall provide that the proceeds
thereof shall be paid to Mortgagee, all as may be satisfactory to Mortgagee.
During any construction, repair or restoration of the buildings and other
improvements on the Mortgaged Premises, Mortgagor shall carry or cause to be
carried builder's risk insurance which names Mortgagee as a loss payee as its
interests may appear. The Mortgagor shall also carry comprehensive general or
public liability insurance with reference to the Mortgaged Premises, which
names Mortgagee as an additional insured. All such policies shall provide that
the same may not be canceled or terminated without giving Mortgagee at least 30
days' prior written notice of such cancellation or termination.
(b) The Mortgagor shall deliver to Mortgagee at its principal office
aforesaid or at such other place as may be designated by the holder hereof such
insurance policies or, if Mortgagee consents, certificates evidencing such
policies. Renewals thereof shall likewise be delivered to Mortgagee at least
15 days before the expiration of any existing policies. Should Mortgagor fail
to insure or fail to pay the premiums on any such insurance or fail to deliver
the policies or renewals thereof as provided above, Mortgagee at its option may
have such insurance written or renewed and pay the premiums thereon for the
account of Mortgagor.
(c) In the event of loss or damage, the proceeds of said property and
builders' risk insurance on the buildings and improvements shall be paid to
Mortgagee alone. No such loss or damage shall itself reduce the Mortgage
Indebtedness. The Mortgagee is authorized to adjust and compromise such loss
without the consent of Mortgagor, to collect, receive and receipt for such
proceeds in the name of Mortgagee and Mortgagor and to endorse Mortgagor's name
upon any check in payment thereof. Such proceeds shall be applied first toward
reimbursement
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of all costs and expenses of Mortgagee in collecting said proceeds and
then toward payment of the Mortgage Indebtedness or any portion thereof,
whether or not then due or payable, or Mortgagee at its option may apply said
insurance proceeds, or any part thereof, to the repair or rebuilding of the
Mortgaged Premises. No such application of proceeds by Mortgagee toward
payment of the Mortgage Indebtedness shall reduce the amount of the payments
required to be made on the Mortgage Indebtedness in accordance with its terms.
(d) In the event of a foreclosure of this Mortgage, the purchaser of the
Mortgaged Premises shall succeed to all of the rights of Mortgagor under said
insurance policies payable to Mortgagee, including any right to unearned
premiums and the right to receive the proceeds of any insurance payable by
reason of any loss theretofore or thereafter occurring.
8. Eminent Domain. Notwithstanding any taking under the power of eminent
domain, alteration of the grade of any street, or other injury to or decrease
in value of the Mortgaged Premises by any public or quasi-public authority or
corporation, Mortgagor shall continue to pay the Mortgage Indebtedness in
accordance with the terms of the Notes, and any reduction in the principal sum
resulting from the application by Mortgagee of such award or payment as
hereinafter set forth shall be deemed to take effect only upon the receipt by
Mortgagee of such award. The Mortgagor hereby assigns the entire proceeds of
any award or payment to Mortgagee. The Mortgagee is authorized to commence,
appear in and prosecute, in its own or in Mortgagor's name, any action or
proceeding relating to any such taking, and to settle or compromise any claim
in connection therewith. Such proceeds shall be applied first toward
reimbursement of all costs and expenses of Mortgagee in collecting said
proceeds and then toward payment of the Mortgage Indebtedness or any portion
thereof, whether or not then due or payable, or Mortgagee at its option may
apply said proceeds, or any part thereof, to the alteration, restoration or
rebuilding of the Mortgaged Premises. No such application of proceeds by
Mortgagee toward payment of the Mortgage Indebtedness shall reduce the amount
of the payments required to be made on the Mortgage Indebtedness in accordance
with its terms.
9. Waste. Except as otherwise permitted under this Mortgage, without
limiting in any way the construction of the term of "waste" under law, as the
same may exist from time to time, the failure of Mortgagor to pay any taxes or
assessments assessed against the Mortgaged Premises, or any installment
thereof, or any premiums payable with respect to any insurance policy covering
the Mortgaged Premises, shall constitute waste.
10. Reimbursement of Advances by Mortgagee. The Mortgagor shall pay to
Mortgagee, upon demand, all sums expended by Mortgagee, or by a receiver
appointed at the request of Mortgagee, unless such sums shall be paid out of
the rents, income and profits from the Mortgaged Premises, (a) to pay insurance
premiums, taxes, assessments, water and sewer charges and other governmental
charges and impositions with respect to the Mortgaged Premises, (b) to
maintain, repair or improve the Mortgaged Premises, (c) to defend the lien of
this Mortgage as a lien against the Mortgaged Premises subject only to the
Permitted Encumbrances
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hereinabove expressly set forth, (d) to discharge any lien or encumbrance
affecting the Mortgaged Premises other than Permitted Encumbrances, (e) to cure
any default of Mortgagor under any lease or other agreement covering the
Mortgaged Premises, (f) to cure any default of Mortgagor hereunder or under any
of the Loan Documents or (g) for or in connection with any other action taken by
Mortgagee to preserve the security of this Mortgage or any other security for
the Mortgage Indebtedness or to protect any of Mortgagee's rights hereunder, to
the fullest extent contemplated by Section 5301.233 of the Ohio Revised Code.
All such expenditures as shall be made by Mortgagee or such receiver or pursuant
to any other provision of this Mortgage or the other Loan Documents, including
any reasonable attorneys' fees and disbursements incurred by Mortgagee or such
receiver in connection with the foregoing, shall be payable upon demand and be
secured by this Mortgage and shall bear interest at the Overdue Rate set forth
in the Credit Agreement.
11. Change in Taxes. In the event any tax shall be due or become due and
payable to the United States of America, the State of Ohio or any political
subdivision thereof with respect to the execution and delivery or recordation
of this Mortgage or any note or other instrument or agreement evidencing or
securing repayment of the Mortgage Indebtedness or the interest of Mortgagee in
the Mortgaged Premises, Mortgagor shall pay such tax at the time and in the
manner required by applicable law and Mortgagor shall hold Mortgagee harmless
and shall indemnify Mortgagee against any liability of any nature whatsoever
as a result of the imposition of any such tax.
In the event of the passage after the date of this Mortgage of any law in
the State of Ohio deducting from the value of real property for purposes of
taxation any lien thereon, or changing in any way the laws now in force for the
taxation of mortgages or debts secured thereby (including the interest thereon)
for state or local purposes, or changing the manner of collection of any such
taxes, and imposing a tax, either directly or indirectly, on this Mortgage, the
Notes or any of the other Loan Documents, the holder of this Mortgage shall
have the right to declare the entire unpaid amount of the Mortgage
Indebtedness, together with accrued and unpaid interest thereon, to be due and
payable on a date to be specified by not less than 30 days' written notice to
Mortgagor, provided, however, that such election shall not be effective if
Mortgagor is permitted by law to pay the whole of such tax in addition to all
other payments required thereunder and if Mortgagor, prior to such specified
date, makes payment of such tax then due and agrees to pay any such tax when
thereafter levied or assessed against the Mortgaged Premises, this Mortgage,
the Notes or any of the other Loan Documents.
12. Events of Default. The occurrence of any of the following events
shall be deemed an "Event of Default" hereunder and shall entitle Mortgagee to
exercise its remedies hereunder and under any of the other Loan Documents or as
otherwise provided by law:
(a) Nonpayment of any of the Mortgage Indebtedness when due, beyond any
period of grace, if any, provided with respect thereto and after the giving of
any required notice;
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(b) The failure of the Mortgagor to perform or observe any material term
or covenant contained in this Mortgage and such failure shall remain unremedied
for 30 calendar days, after the earlier of (i) written notice thereof shall
have been given to the Mortgagor from the Mortgagee and (ii) when the Mortgagor
otherwise had knowledge of such failure, unless the Mortgagor is diligently
pursuing to cure such failure to the reasonable satisfaction of the Mortgagee;
(c) Any representation or warranty made by Mortgagor in this Mortgage
shall prove to have been false or misleading in any material respect when made;
or
(d) The occurrence of any Event of Default (as defined in the Credit
Agreement) under the Credit Agreement.
13. Remedies upon Default; Power of Sale. Immediately upon the occurrence
of any Event of Default after applicable notice and grace periods have elapsed,
Mortgagee shall have the option, in addition to and not in lieu of or
substitution for all other rights and remedies provided in this Mortgage or any
other Loan Documents or provided by law, and is hereby authorized and empowered
by Mortgagor, to do any or all of the following:
(a) Declare the entire unpaid amount of the Mortgage Indebtedness,
together with accrued and unpaid interest thereon, and any and all charges
payable by Mortgagor to Mortgagee pursuant to any of the Loan Documents,
immediately due and payable and, at Mortgagee's option, (i) to bring suit
therefor, or (ii) to bring suit for any delinquent payment of or upon the
Mortgage Indebtedness, or (iii) to take any and all steps and institute any and
all other proceedings that Mortgagee deems necessary to enforce payment of the
Mortgage Indebtedness and performance of other obligations secured hereunder
and to protect the lien of this Mortgage.
(b) Commence foreclosure proceedings against the Mortgaged Premises
through judicial proceedings or by advertisement, at the option of Mortgagee,
pursuant to the applicable statutes in such case made and provided, and to sell
the Mortgaged Premises or to cause the same to be sold at public sale, and to
convey the same to the purchaser in accordance with said statutes in a single
parcel or in several parcels at the option of Mortgagee.
(c) Cause to be brought down to date an abstract or abstracts and tax
histories of the Mortgaged Premises, procure title insurance or title reports
or, if necessary, procure new abstracts and tax histories.
(d) Obtain a receiver to manage the Mortgaged Premises and collect the
rents, profits and income therefrom.
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(e) In the event of any sale of the Mortgaged Premises by foreclosure,
through judicial proceedings, by advertisement or otherwise, apply the proceeds
of any such sale in the order following to: (i) all expenses incurred for the
collection of the Mortgage Indebtedness and the foreclosure of this Mortgage,
including reasonable attorneys' fees and disbursements, or such attorneys' fees
and disbursements as are permitted by law, (ii) all sums expended or incurred
by Mortgagee directly or indirectly in carrying out the terms, covenants and
agreements of the Notes, this Mortgage and the other Loan Documents, together
with interest thereon as therein provided, (iii) all accrued and unpaid
interest upon the Mortgage Indebtedness, (iv) the unpaid principal amount of
the Mortgage Indebtedness, and (v) the surplus, if any there be, unless a court
of competent jurisdiction decrees otherwise, to Mortgagor.
14. Successors in Ownership. In the event ownership of the Mortgaged
Premises or any part thereof becomes vested in a person or persons other than
Mortgagor without the prior written approval of Mortgagee, Mortgagee may (but
shall not be obligated to) deal with such successor or successors in interest
with reference to this Mortgage and the other Loan Documents in the same manner
as with Mortgagor, without in any manner discharging or otherwise affecting
Mortgagor's liability hereunder or upon the Mortgage Indebtedness.
15. Personal Property. (a) The Mortgagor represents and warrants that
Mortgagor owns all presently owned Equipment and other personal property
described in this Mortgage free and clear of any and all liens and security
interests except for the lien and security interest granted by this Mortgage
and Permitted Encumbrances and any Liens permitted by the terms of the Credit
Agreement. The Mortgagor further represents and warrants that, as to Equipment
and other personal property hereafter acquired, Mortgagor will own all such
Equipment and other personal property at the time it is brought on the Land and
thereafter free and clear of any and all liens and security interests except
for the lien and security interest granted by this Mortgage, any other security
instrument or agreement in favor of Mortgagee, and Permitted Encumbrances and
any Liens permitted by the terms of the Credit Agreement.
(b) The Mortgagor does hereby grant a security interest to Mortgagee
pursuant to the Uniform Commercial Code and Chapter 1301.01 et seq. of the Ohio
Revised Code, each as amended from time to time, in any Equipment and other
personal property covered hereby. The Mortgagor agrees, upon request of
Mortgagee, to furnish an inventory of personal property owned by Mortgagor and
subject to this Mortgage and, upon request by Mortgagee, to execute any
supplements to this Mortgage, any separate security agreement and any financing
statements to include specifically said inventory of personal property. Upon
the occurrence of an Event of Default, Mortgagee shall have all of the rights
and remedies therein provided or otherwise provided by law or by this Mortgage,
including but not limited to the right to require Mortgagor to assemble such
personal property and make it available to Mortgagee at a place to be
designated by Mortgagee which is reasonably convenient to both parties, the
right to take possession of such personal property with or without demand and
with or without process of law and the right to sell and dispose of the same
and distribute the proceeds according to law. The
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parties hereto agree that any requirement of reasonable notice shall be met if
Mortgagee sends such notice to Mortgagor at least ten (10) days prior to the
date of sale, disposition or other event giving rise to the required notice,
and that the proceeds of any disposition of any of such personal property may
be applied by Mortgagee first to the reasonable expenses in connection
therewith, including reasonable attorneys' fees and disbursements and then to
payment of the Mortgage Indebtedness.
16. Assignment of Leases and Rents. As of the date of this Mortgage,
Mortgagor hereby assigns to Mortgagee all its right, title and interest in and
to all written and oral leases, whether now in existence or which may hereafter
come into existence during the term of this Mortgage, or any extension hereof,
covering the Mortgaged Premises or any part thereof (but without an assumption
by Mortgagee of liabilities of Mortgagor under any such leases by virtue of
this assignment), and Mortgagor hereby assigns to Mortgagee the rents, issues
and profits of the Mortgaged Premises. Until the occurrence of an Event of
Default, Mortgagor shall have the right to receive and collect such rents,
issues and profits. Upon the occurrence of an Event of Default, Mortgagee may
elect upon written notice to Mortgagor to receive and collect said rents,
issues and profits personally or through a receiver so long as any such Event
of Default shall exist and during the pendency of any foreclosure proceedings
and during any redemption period, and Mortgagor hereby consents to the
appointment of a receiver if believed necessary or desirable by Mortgagee to
enforce its rights under this paragraph 16. The collection of rents by
Mortgagee shall in no way waive the right of Mortgagee to foreclose this
Mortgage in the event of any Event of Default.
17. Prohibition of Transfer and Further Encumbrances. Except as permitted
under the Credit Agreement, the Mortgagor shall not, without the prior written
consent of Mortgagee, permit or suffer the Mortgaged Premises, or any part
thereof, to be sold, assigned, transferred or encumbered in any way, whether by
operation of law or otherwise. The preceding sentence shall not apply to
transfers of ownership in Mortgagor resulting from the death of a natural
person, transfers by a natural person to a member or members of such person's
immediate family or transfers by a natural person in connection with bona fide
estate planning.
18. Severability. If any provision hereof is in conflict with any statute
or rule of law of the State of Ohio or is otherwise unenforceable for any
reason whatsoever, then such provision shall be deemed null and void to the
extent of such conflict or unenforceability and shall be deemed severable from
but shall not invalidate any other provisions of this Mortgage.
19. Environmental Matters. The representations, warranties, covenants and
agreements made by the Mortgagor to the Mortgagee in the Environmental
Certificate delivered by the Mortgagor to the Mortgagee in connection with the
execution of this Mortgage are incorporated herein by reference. The Mortgagor
agrees that any default under the terms of the Environmental Certificate will
constitute a default under this Mortgage.
OPEN-END MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS
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12
20. Waiver. No waiver by Mortgagee of any right or remedy granted
hereunder or failure to insist on strict performance by Mortgagor hereunder
shall affect or extend to or act as a waiver of any other right or remedy of
Mortgagee hereunder, nor affect the subsequent exercise of the same right or
remedy by Mortgagee for any further or subsequent default by Mortgagor
hereunder, and all such rights and remedies of Mortgagee hereunder are
cumulative.
21. Marshalling. The Mortgagor hereby waives, in the event of foreclosure
of this Mortgage or the enforcement by the Mortgagee of any other rights and
remedies hereunder, any right otherwise available in respect to marshalling of
assets which secure the Mortgage Indebtedness or to require Mortgagee to pursue
its remedies against any other such assets.
22. POWER OF SALE; WAIVER OF NOTICE AND HEARING ON FORECLOSURE. THIS
MORTGAGE CONTAINS A POWER OF SALE AND UPON THE OCCURRENCE OF AN EVENT OF
DEFAULT MAY BE FORECLOSED BY ADVERTISEMENT. IN FORECLOSURE BY ADVERTISEMENT
AND THE SALE OF THE MORTGAGED PREMISES IN CONNECTION THEREWITH NO HEARING IS
REQUIRED AND THE ONLY NOTICE REQUIRED IS THE PUBLICATION OF NOTICE IN A LOCAL
NEWSPAPER AND THE POSTING OF A COPY OF THE NOTICE ON THE PREMISES. THE
MORTGAGOR HEREBY WAIVES ALL RIGHTS UNDER THE CONSTITUTION AND LAWS OF THE
UNITED STATES AND THE STATE OF OHIO TO A HEARING PRIOR TO SALE IN CONNECTION
WITH FORECLOSURE OF THIS MORTGAGE BY ADVERTISEMENT AND ALL NOTICE REQUIREMENTS
EXCEPT AS SET FORTH IN THE OHIO STATUTE PROVIDING FOR FORECLOSURE BY
ADVERTISEMENT.
23. Further Instruments. The Mortgagor shall execute, acknowledge and
deliver any and all such further conveyances, documents, mortgages and
assurances, and do or cause to be done all such further acts, as Mortgagee may
reasonably require to confirm and protect the lien of this Mortgage or
otherwise to accomplish the purposes hereof forthwith upon the request of
Mortgagee, whether in writing or otherwise.
24. Notices. All notices, demands, requests, consents and other
communications shall be delivered and shall be effective in the manner
specified in the Credit Agreement.
25. Governing Law; Binding Effect; Definitions. This Mortgage, made in
the State of Ohio, shall be construed according to the laws thereof and shall
be binding upon Mortgagor and its successors and assigns and any subsequent
owners of the Mortgaged Premises, and all of the covenants herein contained
shall run with the land, and this Mortgage and all of the covenants herein
contained shall inure to the benefit of Mortgagee, its successors and assigns.
Terms used but not defined herein shall have the meanings ascribed thereto in
the Credit Agreement.
OPEN-END MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS
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13
26. Headings. The headings in this Mortgage are for convenience of
reference only and shall not limit or otherwise affect the meaning of any
provision of this Mortgage.
27. Fixture Filing. This Mortgage also constitutes a financing statement
filed as a fixture filing under the Uniform Commercial Code with respect to
goods which are or are to become fixtures relating to the Land and as to which
Mortgagor is the debtor and record owner of the Land and Mortgagee is the
secured party. It is to be recorded in the real estate records of the County
in which the Land is located.
28. Open-End Mortgage; Protective Advances. The parties hereto intend
that, in addition to any other debt or obligation secured hereby, this Mortgage
shall secure unpaid balances of loan advances made by the holder hereof, or by
the lenders for which the holder hereof acts as agent, at the request of
Mortgagor or any of its successors in title after this Mortgage is delivered to
the Recorder for record to the fullest extent and with the highest priority
contemplated by Section 5301.232 of the Ohio Revised Code. The maximum amount
of loan indebtedness secured by this Mortgage, in the aggregate and exclusive
of interest accrued thereon and protective advances made as contemplated in
Section 5301.233 of the Ohio Revised Code, which may be outstanding at any time
is One Hundred and Forty Million Dollars ($140,000,000). Any such loan
advances may or may not be evidenced by a note or notes of Mortgagor or its
successors in title executed and delivered at the time any loan advance is
made. If and to the extent applicable, Mortgagor hereby waives any right it
may have under Section 5301.232(c) of the Ohio Revised Code.
29. Mortgagee's Rights Under Mechanics' Lien Laws. Mortgagee shall be and
is hereby is authorized and empowered to do as Mortgagee all things provided in
the mechanics' lien laws of Ohio, including, without limitation, Section
1311.14 of the Ohio Revised Code, and all amendments and supplements thereto.
30. Use of Insurance and Condemnation Proceeds. Notwithstanding any other
provision of this Mortgage, all insurance proceeds recovered by the Mortgagee
on account of damage or destruction to the Mortgaged Premises and all proceeds
of any condemnation award recovered by the Mortgagee for any building or
equipment taken or damaged, less the cost, if any, to the Mortgagee of such
recovery and of paying out such proceeds (including attorneys' fees and costs
allocable to inspecting the work and the plans and specifications therefor),
shall, upon the written request of the Mortgagor, be applied by the Mortgagee
to the payment of the cost of repairing, restoring or rebuilding the
improvements on the Mortgaged Premises so damaged or destroyed or of the
portion or portions of the Mortgaged Premises not so taken (hereinafter
referred to as the "work") and shall be paid out from time to time to the
Mortgagor as the work progresses, but subject to the Mortgagee's standard
requirements for construction loans of similar nature and subject to the
following conditions:
OPEN-END MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS
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14
(a) There shall be no Event of Default under this Mortgage or any of the
other Loan Documents; and
(b) The request for any payment after the work has been completed shall be
accompanied by a copy of any certificate or certificates required by law to
render occupancy of the Mortgaged Premises legal.
Upon the completion of the work and payment in full therefore, or upon any
failure on the part of the Mortgagor promptly to commence or continue the work,
or at any time upon request by the Mortgagor, the Mortgagee may, at its option,
either apply the amount of any such proceeds then or thereafter in the hands of
the Mortgagee to the payment of the Mortgage Indebtedness or any portion
thereof, whether or not then due and payable, or remit such amount to the
Mortgagor.
31. Appointment of Receiver. Mortgagor agrees that upon or any time after
(a) the occurrence of an Event of Default hereunder, or (b) the commencement of
an action to foreclose this Mortgage pursuant to Ohio law, Mortgagee shall, in
any event, and at any such time, have the right to apply without notice (the
same being expressly waived) for the appointment of a receiver of the Mortgaged
Premises and the rents and profits thereof, and Mortgagee shall be entitled to
the appointment of such a receiver as a matter of right, without consideration
of the value of the Mortgaged Premises as security for the Mortgage
Indebtedness or the solvency or insolvency of Mortgagor or any other party. To
the extent permitted by law, Mortgagor hereby waives any right to object to the
appointment of a receiver as aforesaid and expressly consents that such
appointment shall be made as an admitted equity and as a matter of absolute
right to Mortgagee. Mortgagee or any Lender may be appointed as such receiver.
Such receiver shall have power: (i) to collect the rents, issues and profits
of the Mortgaged Premises during the pendency of such foreclosure suit and, in
case of a sale and a deficiency, during the full statutory period of
redemption, whether there be redemption or not, as well as during any further
times when Mortgagor, except for the intervention of such receiver, would be
entitled to collect such rents, issues and profits; (ii) to extend or modify
any then existing leases and to make new leases, which extensions,
modifications and new leases may provide for terms to expire, or for options to
lessees to extend or renew terms to expire, beyond the maturity date of the
indebtedness hereunder and beyond the date of the issuance of a deed or deeds
to a purchaser or purchasers at a foreclosure sale, it being understood and
agreed that any such leases, and the options or other such provisions to be
contained therein, shall be binding upon Mortgagor and all persons whose
interests in the Mortgaged Premises are subject to the lien hereof and upon the
purchaser or purchasers at any foreclosure sale, notwithstanding any redemption
from sale, discharge of the Mortgage Indebtedness, satisfaction of any
foreclosure decree, or issuance of any certificate of sale or deed to any
purchaser; and (iii) all other powers which may be necessary or are usual in
such cases for the protection, possession, control, management and operation of
the Mortgaged Premises during the whole of said period. The court from time to
time may authorize the receiver to apply the net income in his hands in payment
in whole or in part of: (y) the
OPEN-END MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS
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15
indebtedness secured hereby, or by any decree foreclosing this Mortgage, or any
tax, special assessment or other lien which may be or become superior to the
lien hereof or of such decree, provided such application is made prior to
foreclosure sale; and (z) the deficiency in case of a sale and deficiency.
IN WITNESS WHEREOF, Mortgagor has duly executed this Mortgage as of the
day and year first above written.
Signed in the presence of: KEY PLASTICS, INC.
Xxxx Skershiner
------------------------------ By: Xxxx X. Xxxx
-----------------------------
Print Name: Xxxx Skershiner Xxxx X. Xxxx
------------------- Its: Treasurer and Assistant Secretary
M. Xxxxx Xxx
------------------------------
Print Name: M. Xxxxx Xxx
-------------------
OPEN-END MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS
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16
STATE OF MICHIGAN )
)SS.
COUNTY OF XXXXX )
BEFORE ME, a Notary Public, in and for said County and State, personally
appeared Xxxx X. Xxxx, the Treasurer and Assistant Secretary of Key Plastics,
Inc., a Michigan corporation, who acknowledged that he did sign the foregoing
instrument on behalf of said corporation, and that the same is the free act and
deed of said corporation, and his free act and deed individually and as such
________________, for the uses and purposes therein stated.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Detroit , Michigan this 24th day of March, 1997.
--------- -----------
Xxxxxx X. Xxxxxx
----------------------------------- Notary Public,
-----------------------
Acting in
----------------------- County
My Commission Expires:
----------------
Drafted by and when
recorded return to:
Mi Xxxxx Xxx, Esq.
Dickinson, Wright, Moon,
Van Dusen & Xxxxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
OPEN-END MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS
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17
EXHIBIT A
Situated in the Village of Montpelier, County of Xxxxxxxx and State of Ohio and
described as follows:
PARCEL I:
Situated in the County of Xxxxxxxx in the State of Ohio and in the Village of
Montpelier and described as follows: Known as and being the west one-fifth of
Lot Number Seven (7) in XXXXXX XXXXXX'X FIRST ADDITION, more particularly
described as follows: Commencing at the northwest corner of said Lot 7, thence
east 52.8 feet; thence south 61.75 feet to the south line of said Lot 7, thence
west 52.8 feet to the southwest corner of said Lot 7, and thence north to the
place of beginning. Now known as Lot 7-A on the Auditor's tax map.
PARCEL II:
Outlots Number 36, 36A, 36D, 36E in the East one half of Xxxxxxx 00, Xxxx 0
Xxxxx, Xxxxx 0 Xxxx; (which are comprised of the vacated streets and alleys
and Lots 8, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27,
28 and 29 of Xxxxxx Xxxxxx'x First Addition to the Village of Montpelier, Ohio,
and Lot No. 30 in Xxxxxx Xxxxxx'x First Addition to the Village of Montpelier,
saving and excepting that portion of said Lot 30 heretofore conveyed to the
Village of Montpelier, Ohio, by deed recorded in Volume 193, Page 404 of the
Xxxxxxxx County deed records; and saving and excepting parts deeded to the
Village of Montpelier, Ohio for street purposes by deeds recorded in Volume
253, Page 1034 and Volume 266, Page 523; said Lots 8 through 30 and streets and
alleys in Xxxxxx Xxxxxx'x Addition vacated by proceedings filed in Xxxxxxxx
County Common Pleas Court, File No. 16119, and Ordinance No. 57 of the Council
of the Village of Montpelier, passed on January 6, 1947.
PARCEL III:
Known as and being all of Outlot Number Eleven (11) in the east half of Section
10, Town 7 North, Range 2 East, in the Village of Montpelier.
PARCEL IV:
All of Outlot Number Seven (7) in the east half of Section 10, Town 7 North,
Range 2 East, in the Village of Montelier, more particularly described as
follows: Commencing at the southwest corner of Lot No. 7 in Xxxxxx Xxxxxx'x
First Addition to said village, running thence west to the east line of Lot
No. 9 in said addition; thence north to the northeast corner of said Lot No.
9, thence east to the northwest corner of said Lot No. 7, thence south to the
place of beginning.
18
PARCEL V:
Known as and being all of Out lot No. Twenty in the east half of Section 10,
Town 7 North, Range 2 East in said village of Montpelier, Ohio. (Said outlot
20 includes a parcel of real estate previously described as follows:
Commencing at a point 52.8 feet east of the southwest corner of Lot No. 7 in
Xxxxxx Xxxxxx'x first Addition to said Village of Montpelier, running thence
south 120 feet, thence west 177.8 feet to the east line of Lot No. 8, thence
due north 120 feet, and thence east to the place of beginning.) Known as
Outlot 20, N pt. and Outlot 20, S pt on Auditor's tax map for said section.
PARCEL VI:
The west 22 feet of Outlots 9 and 10 in the east half of section 10, more
particular described as follows: Commencing at a point 158.7 feet north and
351.0 feet west of the intersection of the section line between Sections 10
and 11, Town 7 North, Range 2 East (said section line being the centerline of
Mill Street in said village), and the north line of the right-of-way of the
Wabash Railroad; running thence east 22 feet, running thence south
approximately 226.92 feet to the north line of the right-of-way of said
railroad, running thence southwest along said north right-of-way line
approximately 22.4 feet to a point directly south of the point of beginning,
running thence north 231.35 feet to the point of beginning.
PARCEL VII:
All of that part of Outlot Number thirty (30) in the east half of Section 10,
Town 7 North, Range 2 East, in said Village of Montpelier, more particularly
described as follows: Commencing at the northwest corner of Lot 29 in Xxxxxx
Xxxxxx'x First Addition to said Village, running thence north to the center of
what was formerly the channel of the St. Xxxxxx River as it existed in 1905,
thence in a northeasterly direction following the center of said old channel
until it arrives at a point directly north of the northeast corner of said Lot
29, thence south to the northeast corner of said Lot 29, and thence in a
westerly direction to the place of beginning.
19
PARCEL VIII:
Situated in the Village of Montepelier, County of Xxxxxxxx and State of Ohio
and being in the Southeast Quarter (1/4) of the Northeast Quarter (1/4) of
Section Ten (10) in Township 7 North, Range 2 East and being a part out of the
presently designated Outlot 5, and more specifically described as follows:
Commencing at the Southwest corner of Lot Number 5 of Xxxxxx Xxxxxx'x First
Addition to the Village of Monteplier, thence South 89 degrees 41 minutes 33
seconds West on and along Xxxxxxxx Street approximately 235.2 feet, thence
north 0 degrees East approximately 120 feet, thence North 89 degrees 41
minutes 33 seconds East approximately 235.2 feet to a point on the west
boundary line of Lot Number 5 of Xxxxxx Xxxxxx'x First Addition, thence South 0
degrees West approximately 120 feet to the point of beginning. Now known as
Outlot 5A on the Auditor's tax map for said section.
20
EXHIBIT B
---------
Permitted Encumbrances
(Montpelier, Ohio)
1. Mortgage form Key Plastics, Inc., Michigan Corporation, to Del-Craft,
Inc., an Ohio Corporation and to Del and Xxxx Xxxxx ("Xxxxx"), in the
amount of $1,019,100.00, dated January 11, 1988, received for record
January 11, 1998 at 4:28 PM and recorded in Xxxxxxxx County Record of
Mortgages Volume 253, Page 228.; provided that, as of the date hereof, such
Mortgage has been paid in full, and such Mortgage shall be released and
discharged of record by not later than April 30, 1997.
2. By instrument dated August 5, 1957, received for record August 14, 1957
at 2:31 PM and recorded in Xxxxxxxx County Record of Deed in Volume 194,
Page 141, an easement was granted unto The Village of Montpelier for
electric lines.
3. By instrument dated August 5, 1957, received for record August 14, 1957
at 2:33 PM and recorded in Xxxxxxxx County Record of Deeds in Volume 194 at
Page 143, easements were granted to The Village of Montpelier for pipe
sewers, and/or force main sewers and water mains.
4. By deed received for record October 28, 1958 at 11:24 AM and recorded
in Xxxxxxxx County Record of Deeds in Volume 197 at Page 295 part of the
premises was conveyed to a prior owner of said parcel by the Village of
Montpelier and said Village retained an easement upon, through and under
said property to use, repair, operate, and maintain all existing utilities.
5. Rights of others part of vacated streets and alleys as shown on deed
recorded in Xxxxxxxx Record of Deeds Volume 269, Page 811.
OPEN-END MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS
