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EXHIBIT 10.3
MORTGAGE
THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND LEASES,
FIXTURE FILING AND FINANCING STATEMENT ("Mortgage") is made and granted this
28th day of April, 1998, by TALON AUTOMOTIVE GROUP, INC., a Michigan
corporation, whose address is 000 Xxxxxxxx, Xxxxx 000, Xxxx, Xxxxxxxx
00000("Xxxxxxxxx"), and COMERICA BANK, a Michigan banking corporation, as Agent
under the Credit Agreement (defined below), whose address is Comerica Tower at
Detroit Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Mortgagee").
Mortgagor is or may become indebted to Mortgagee in the amount of ONE
HUNDRED MILLION DOLLARS ($100,000,000) pursuant to that certain Credit Agreement
of even date herewith between Mortgagor, certain other Borrowers, Mortgagee and
the Banks from time to time party thereto (the "Credit Agreement") and various
promissory notes and letter of credit agreements executed or to be executed
pursuant to the Credit Agreement the ("Notes"). The principal and interest on
the Notes are payable in accordance with their respective terms.
THIS MORTGAGE SECURES FUTURE ADVANCES AND IS A FUTURE ADVANCE MORTGAGE
UNDER ACT 348 OF THE PUBLIC ACTS OF 1990 (MCLA 565.901 ET SEQ.). THE MAXIMUM
PRINCIPAL AMOUNT EXCLUDING PROTECTIVE ADVANCES, THAT MAY BE SECURED BY THIS
MORTGAGE IS ONE HUNDRED MILLION DOLLARS ($100,000,000).
GRANTING CLAUSE
In order to secure payment of the Indebtedness (hereinafter defined)
and the performance of the covenants, terms and conditions hereof and of any of
the other Loan Documents (hereinafter defined), Mortgagor does MORTGAGE AND
WARRANT to Mortgagee, subject only to the Permitted Encumbrances (hereinafter
defined), real estate owned by Mortgagor situated in the CITY OF ROYAL OAK,
COUNTY OF OAKLAND, STATE OF MICHIGAN described more particularly on Exhibit A
attached hereto.
Together with all buildings and improvements now or hereafter existing
upon the real estate or any part thereof, and all heretofore or hereafter
vacated alleys, streets and sidewalks abutting the real estate and all
easements, licenses, rights-of-way and privileges benefitting the real estate
or in anywise appertaining thereto, if any, and together with all Fixtures
(hereinafter
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defined); and
Together with all of the rents, profits and leases of the Premises
(hereinafter defined) and all of the tenements, hereditaments, and appurtenances
thereto belonging or in anywise appertaining and any and all reversions and
remainders, and all of the estate, right, title, interest, property, claim and
demand whatsoever of Mortgagor in and to the Premises and any part thereof; and
Mortgagor grants to Mortgagee a security interest in all of the
Fixtures, but if the same be deemed to be part of the real estate then Mortgagor
mortgages and warrants such Fixtures to Mortgagee. Mortgagor grants to Mortgagee
a security interest in the Goods, Accounts and General Intangibles (all
hereinafter defined), and all proceeds of the foregoing.
This Mortgage is given to secure an obligation incurred by the
Mortgagor under the Notes, and grants the Mortgagee a first priority on the
Royal Oak, Michigan real property described herein.
DEFINITIONS
FOR THE PURPOSE OF THIS MORTGAGE UNLESS THE CONTEXT SHALL OTHERWISE REQUIRE:
A. "ACCOUNTS" are any right to payment owned by Mortgagor or in which
Mortgagor has an interest arising out of ownership, maintenance or use of the
Premises and include all rents, profits and income of the Premises (to the
extent the same are or may hereafter be subject to the Michigan Uniform
Commercial Code) and all accounts receivable which are any part of or arise from
such rents, profits and income or which otherwise relate in any way to the
Premises.
B. "ASBESTOS" shall have the meanings provided under the Relevant
Environmental Laws, and shall include, but not be limited to, asbestos fibers
and friable asbestos, as such terms are defined under the Relevant Environmental
Laws.
C. "EVENT OF DEFAULT" shall have the meaning set forth in paragraph 11.
D. "FIXTURES" are all goods and equipment which are or may hereafter
become fixtures and are located upon or within the Premises or are now or
hereafter attached to, or installed in, or used in connection with, any of the
Premises or Fixtures, including, but not limited to, any and all partitions,
dynamos, screens, awnings, motors, engines, boilers, furnaces,
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pipes, plumbing, cleaning, call and sprinkler systems, fire extinguishing
apparatus and equipment, water tanks, heating, ventilating, air-conditioning and
air-handling equipment, built-in refrigerated rooms, gas and electric machinery,
elevators and elevator equipment, appurtenances and equipment, whether or not
permanently affixed to the real estate and all replacements thereof and all
proceeds of such Fixtures.
E. "GENERAL INTANGIBLES" are any and all of the right, title and
interest of Mortgagor in and to (i) all insurance policies and the proceeds
thereof or claims paid or to be paid thereunder relating in any manner to the
Premises or to the rents, profits and income thereof, and any return of
premiums, (ii) the rents, profits and income of the Premises to the extent the
same are subject to the Michigan Uniform Commercial Code and are not Accounts,
(iii) any awards or settlements of an eminent domain proceeding involving a
taking of the Premises or any part thereof or any awards or settlements made in
an eminent domain proceeding arising out of any claim of diminution in value of
the Premises, (iv) any damage awards or settlements arising out of or connected
with any lease or the breach of any lease or any damages to the Premises or to
Mortgagor's interest therein, (v) any damages awards or settlements arising out
of any act or omission by any insurance company or agency with respect to the
Premises or any part thereof, (vi) any and all claims, actions or causes of
action relating in any manner to the operation of the Premises, (vii) all
refunds on any ad valorem real property taxes or personal property taxes levied
upon the Premises, and (viii) chooses in action, including, but not limited to,
limited partnership subscription receivables, and Mortgagor's rights to
performance under its contracts for architectural, engineering or construction
services relating to the Project.
F. "GOODS" are all items of personal property of every kind, nature and
description which are not Fixtures, and which are now or hereafter owned by
Mortgagor and are located upon or acquired for use in connection with the
Premises and include, but are not limited to, equipment, uninstalled building
materials, plans and specifications relating to improvements on the Premises,
furniture and furnishings and all household appliances placed upon the Premises
by Mortgagor and all replacements thereof or additions of any of the foregoing
and all proceeds of such Goods. Goods do not include personal property owned by
a tenant of the Premises which may be removed by tenant upon termination of such
tenant's lease.
G. "HAZARDOUS WASTES" shall mean any of the following as defined by the
Relevant Environmental Laws: solid wastes; toxic or hazardous substances,
wastes, or contaminants (including, but not limited to, polychlorinated
biphenyls ("PCB's"), paint containing lead, and urea formaldehyde foam
insulation); and discharges of sewage or effluent.
H. Any reference to "INDEBTEDNESS" means the principal and interest and
all other sums evidenced by the Note and all renewals, extensions and
modifications thereof, and all other amounts at any time due or to become due
under the Loan Documents, and all sums, with interest thereon, advanced to
protect the security of this Mortgage, and all other indebtedness and
liabilities of Mortgagor or any guarantor to Mortgagee, whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising and howsoever evidenced.
I. "CREDIT AGREEMENT" is the Credit Agreement executed by Mortgagor and
Mortgagee contemporaneously herewith.
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J. "LOAN DOCUMENTS" are the Notes, this Mortgage, the Credit Agreement
and any other instrument or agreement now or hereafter executed by Mortgagor in
connection with the Indebtedness or as security therefor, and all renewals,
extensions, substitutions, and modifications thereof.
K. "PERMITTED ENCUMBRANCES" are the encumbrances set forth on Exhibit B
attached hereto.
L. Any reference to "PREMISES" shall be deemed to apply without
limitation to all of the above described real estate, and to all buildings and
improvements now or hereafter located thereon, and to all heretofore or
hereafter vacated alleys, streets and sidewalks, easements, licenses,
privileges, right-of-ways, reversions, remainders and all rights, titles,
interests, property, claims and demands of Mortgagor therein and to the rents,
profits, income and leases of the Premises and to the Fixtures and all the Goods
now or hereafter located thereon.
N. "RELEVANT ENVIRONMENTAL LAWS" shall mean all applicable federal,
state and local laws, rules, regulations, orders, judicial determinations, and
decisions or determinations by any judicial, legislative or executive body of
any governmental or quasi-governmental entity, whether in the past, the present
or the future, with respect to: (A) the installation, existence, or removal of,
or exposure to, Asbestos on the Premises; (B) the existence on, discharge from,
or removal from the Premises of Hazardous Wastes; and (C) the effects on the
environment of the Premises or of any activity now, previously, or hereafter
conducted on the Premises. The Relevant Environmental Laws shall include, but
not be limited to, the following: (1) the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Sections 9601 et seq.; the Superfund
Amendments and Reauthorization Act, Public Law 99-499, 100 Stat. 1613; the
Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901 et seq.; the
National Environmental Policy Act, 42 U.S.C. Section 4321; the Safe Drinking
Water Act, 42 U.S.C. Sections 300F et seq.; the Toxic Substances Control Act, 15
U.S.C. Section 2601; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801; the Federal Water Pollution Control Act, 33 U.S.C. Sections 1251
et seq.; the Clean Air Act, 42 U.S.C. Sections 7401 et seq.; and the regulations
promulgated in connection therewith; (2) Environmental Protection Agency
regulations pertaining to Asbestos (including 40 C.F.R. Part 61, Subpart M);
Occupational Safety and Health Administration regulations pertaining to Asbestos
(including 29 C.F.R. Sections 1910.1001 and 1926.58); as each may now or
hereafter be amended; and (3) any state and local laws and regulations
pertaining to Hazardous Wastes and/or Asbestos.
MORTGAGOR DOES HEREBY COVENANT AS FOLLOWS:
1. PAYMENT OF INDEBTEDNESS. Mortgagor shall pay the Indebtedness
according to the terms of the Notes, this Mortgage and the other Loan Documents
and shall perform all the terms, covenants and conditions hereof and of each of
the Loan Documents.
2. TITLE. At the time of the execution and delivery of this Mortgage,
Mortgagor is well and truly seized of the Premises in fee simple, free of all
liens, encumbrances and easements whatsoever, whether prior or subordinate
hereto, except Permitted Encumbrances.
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Mortgagor shall forever warrant and defend the Premises against any and
all claims whatsoever, including all security interests. Except and to the
extent of the Permitted Encumbrances, the lien created hereby is and shall be
kept a first lien upon the Premises and the security interests created hereby
shall be kept as first security interests in and upon the Fixtures, Goods,
Accounts and General Intangibles and every part thereof. Mortgagor shall pay
when due all amounts which might become a lien upon the Premises prior to this
Mortgage. Mortgagor shall not grant or suffer a security interest in any of the
Goods, Fixtures, Accounts or General Intangibles prior to the security interest
granted to Mortgagee. Mortgagor specifically agrees that all after-acquired
Fixtures and Goods shall be owned by Mortgagor free of all liens, encumbrances,
claims of lessors and security interests other than the security interests and
liens created by this Mortgage or the Permitted Encumbrances. Mortgagor, upon
Mortgagee's request, shall execute all other instruments necessary to confirm or
protect the lien of this Mortgage and the security interests granted herein
including, without limitation, security agreements, financing statements and
renewals thereof.
3. TAXES. Except as specifically provided to the contrary in the Credit
Agreement, Mortgagor shall pay forthwith prior to the imposition of any penalty
or interest all taxes and assessments that may be levied upon the Premises and
shall promptly deliver to Mortgagee receipts showing payment thereof. Mortgagor
shall pay when due all taxes and assessments that may be levied upon or on
account of this Mortgage or the Indebtedness secured hereby or upon the interest
or estate in the Premises created or represented by this Mortgage, whether
levied against Mortgagor or otherwise. If at any time internal revenue stamps
are required to be affixed to the Notes or this Mortgage, Mortgagor shall pay
for the same with any interest or penalties imposed in connection therewith. In
the event that payment by Mortgagor, even if voluntarily made, of any tax
referred to in this paragraph would be contrary to public policy or would result
in the payment of interest in excess of the rate permitted by law, then
Mortgagor shall have no obligation to pay the portion of such tax which would
result in the violation of public policy or the payment of such excess interest;
provided, however, in any such event, at any time after the enactment of the law
providing for such tax, Mortgagee, at its election, may declare the entire
principal balance of the Indebtedness secured hereby, together with interest
thereon, to be due and payable immediately.
4. WASTE, ALTERATIONS, COMPLIANCE WITH LAW. Mortgagor shall abstain
from and shall not suffer the commission of waste on the Premises and shall keep
the same in good repair (reasonable wear and tear excepted) and shall make
replacements thereto as and when the same become necessary. Mortgagor shall
promptly notify Mortgagee, in writing, of the occurrence of any material loss or
damage to the Premises. Mortgagor shall not materially alter the Premises,
Fixtures or Goods, or remove the Fixtures or Goods from the Premises, or permit
any tenant or other person to do so, without the prior written consent of
Mortgagee; provided, however, Mortgagor may replace any Fixtures or Goods which
require replacement in the exercise of Mortgagor's business judgment, with
Fixtures and Goods of like or better quality than those replaced. Mortgagor
shall not replace any Fixtures or Goods in which Mortgagee has been granted a
security interest hereby with leased property. Mortgagor shall not permit any
portion of the Premises to be used for any unlawful purpose. Mortgagor shall
comply in all material respects with all laws, ordinances, regulations and
orders of all public authorities having
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jurisdiction thereof and all covenants, conditions and restrictions relating to
the Premises or the use, occupancy and maintenance thereof. Mortgagor shall
permit Mortgagee at any time, and from time to time, to enter the Premises for
the purpose of inspecting the same during normal business hours.
5. HAZARDOUS WASTES.
A. Representations and Warranties. Except as specifically described in
the environmental report previously delivered to Mortgagee, the Mortgagor
represents, warrants and covenants to the Mortgagee as follows:
(i) At all times since the vesting of title to the Premises in
the Mortgagor and (to the best of Mortgagor's knowledge) at all times
prior to the vesting of title to the Premises in the Mortgagor, there
are no and have been no violations of the Relevant Environmental Laws
respecting the Premises and no consent orders have been entered with
respect thereto.
(ii) At all times since the vesting of title to the Premises in
the Mortgagor and (to the best of Mortgagor's knowledge) at all times
prior to the vesting of title to the Premises in the Mortgagor, there
are no and have been no Hazardous Wastes or Asbestos either at, upon,
under or within, or discharged or emitted at or from, the Premises,
including, but not limited to, the air, soil, surface, and ground
water; no Hazardous Wastes or Asbestos have flowed, blown or otherwise
become present at the Premises from neighboring land; and no Hazardous
Wastes or Asbestos have been removed from the Premises other than those
Hazardous Wastes which are necessary and commercially reasonable for
the conduct of the Mortgagor's business operated on the Premises and
which Hazardous Wastes have been, at all times prior to the date
hereof, and at all times hereafter shall be, handled and disposed of in
compliance with all Relevant Environmental Laws and industry standards
and in a commercially reasonable manner by the Mortgagor.
(iii) The Premises will not be used for the purpose of storing
Hazardous Wastes, and no such storage or use will otherwise be allowed
on the Premises which will cause or increase the likelihood of causing
the release of Hazardous Wastes onto the Premises. There are no
underground storage tanks located on the Premises.
(iv) The Mortgagor is not aware of any claims or litigation, and
has not received any communication from any person (including any
governmental authority), concerning the presence or possible presence
of Hazardous Wastes or Asbestos at the Premises or concerning any
violation or alleged violation of the Relevant Environmental Laws
respecting the Premises. The Mortgagor shall promptly notify the
Mortgagee of any such claims and shall furnish Mortgagee with a copy of
any such communications received by Mortgagor.
(v) The Mortgagor shall notify Mortgagee promptly and in
reasonable detail in the event that the Mortgagor becomes aware of or
suspects the presence of Hazardous Wastes (other than those Hazardous
Wastes which are necessary and commercially reasonable for the conduct
of the Mortgagor's business operated on the Premises and which
Hazardous Wastes have been, at all times prior to the date hereof, and
at all times
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hereafter shall be, handled and disposed of in compliance with all
Relevant Environmental Laws and industry standards and in a
commercially reasonable manner by the Mortgagor) or Asbestos or a
violation of the Relevant Environmental Laws at the Premises.
(vi) The Mortgagor shall ensure that the Premises complies and
continues to comply in all respects with the Relevant Environmental
Laws.
(vii) If the Premises are used or maintained so as to subject the
Mortgagor, the Mortgagee or the user of the Premises to a claim of
violation of the Relevant Environmental Laws (unless contested in good
faith by appropriate proceedings), the Mortgagor shall immediately
cease or cause a cessation of such use or operations and shall remedy
and fully cure any conditions arising therefrom, at its own cost and
expense.
B. Mortgagor's Obligations. At its sole cost and expense, the Mortgagor
shall:
(i) Pay when due the cost of compliance with the Relevant
Environmental Laws.
(ii) Keep the Premises free of any lien imposed pursuant to the
Relevant Environmental Laws.
C. Mortgagee's Options. In the event that the Mortgagor fails to comply
with the requirements of this paragraph 5., after notice to the Mortgagor and
the earlier of the expiration of any applicable cure period hereunder, the
expiration of the cure period permitted under the Relevant Environmental Laws,
if any, or such earlier time if Mortgagee determines that life, person or
property is in jeopardy, Mortgagee may, but shall not be obligated to, exercise
its right to do one or more of the following: (i) declare that such failure
constitutes an Event of Default under paragraph 11. herein; and/or (ii) take any
and all actions, at the Mortgagor's expense, that Mortgagee deems necessary or
desirable to cure said failure of compliance.
All costs incurred pursuant to this paragraph 5. shall become
immediately due and payable without notice and with interest thereon at the rate
at which interest accrues in the Notes on amounts after the same become due, and
the amount thereof, including any such interest, shall, if incurred prior to the
foreclosure of this Mortgage or the delivery of a deed in lieu of foreclosure,
be added to the Indebtedness and shall be secured by this Mortgage.
D. Indemnity. Mortgagee shall not be liable for and the Mortgagor shall
immediately pay to Mortgagee when incurred and shall indemnify, defend and hold
Mortgagee harmless from and against, all loss, cost, liability, damage and
expense (including, but not limited to, reasonable attorneys' fees and costs
incurred in the investigation, defense and settlement of claims) that the
Mortgagee may suffer or incur (as holder of this Mortgage, as mortgagee in
possession or as successor in interest to the Mortgagor as owner of the Premises
by virtue of foreclosure or acceptance of a deed in lieu of foreclosure) as a
result of or in connection in any way with any of the Relevant Environmental
Laws (including the assertion that any lien existing pursuant to the Relevant
Environmental Laws takes priority over the lien of this Mortgage), any
environmental assessment or study from time to time undertaken or requested by
the Mortgagor or Mortgagee, or breach of any covenant or undertaking by the
Mortgagor herein; provided, however, the
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Mortgagor shall have no obligation hereunder to the Mortgagee with respect to
indemnified liabilities arising solely from the gross negligence or willful
misconduct of the Mortgagee. Any environmental audit conducted at the
Mortgagee's request shall not be deemed a waiver or relinquishment of the
Mortgagee's right to rely on the covenants, representations, warranties or
agreements made herein and in any other Loan Document, or to receive the
protection and indemnity outlined above. If at any time during the term of the
Loan the Mortgagee reasonably believes that any Relevant Environmental Law has
been or is being violated, the Mortgagee shall have the right to cause an
environmental audit to be conducted at Mortgagor's sole expense or to require
Mortgagor, at Mortgagor's expense, to have an environmental audit done and to
furnish evidence satisfactory to the Mortgagee that no such violation has
occurred.
E. Survival. The provisions of this paragraph 5. shall survive the
foreclosure of this Mortgage, the delivery of a deed in lieu of foreclosure, and
the payment of the Indebtedness.
6. INSURANCE. Mortgagor shall maintain the insurance required under the
Credit Agreement.
7. ESCROWS FOR TAXES AND INSURANCE. At Mortgagee's request upon the
occurrence and during the continuance of an Event of Default, Mortgagor shall
pay to Mortgagee monthly, at the times provided in the Notes for payment of
principal and/or interest, installments for the purpose of paying taxes,
assessments and insurance premiums. The amount of the installments to be paid
may change from year to year as taxes, assessments and insurance premiums
change. To determine the monthly installment, the amount and due date of each
separate tax, assessment and insurance premium are first determined. The amount
of the monthly installment is calculated by dividing each separate tax,
assessment and insurance premium by twelve (12) and adding the resulting
figures. Such computation will provide the total monthly installment. The
installments will be so timed as to assure to Mortgagee that it will have
sufficient funds to pay each respective tax, assessment or insurance premium one
month before the due date. A due date is the first date on which a taxing
authority or applicable law states that the payment is due and not the date
after which a penalty accrues. In an Event of Default, Mortgagor will deposit
with Mortgagee a sufficient sum for each tax, assessment or insurance premium,
computed independently as set forth above, which, when added to the installments
that come due before the next due date for such tax, assessment or premium, will
give Mortgagee sufficient funds to pay the same one month before the due date.
All amounts paid to Mortgagee hereunder will be held by Mortgagee as additional
security for the Indebtedness and may be commingled by Mortgagee with any other
funds. Mortgagor shall not be entitled to receive interest on account of any
sums held hereunder. Nothing contained herein shall in any manner limit the
obligation of Mortgagor to pay taxes and assessments; provided, however, if no
Event of Default has occurred hereunder nor any act occurred which with the
giving of notice or passage of time or both would constitute an Event of Default
hereunder and provided Mortgagor delivers to Mortgagee at least thirty (30) days
before the same become due all invoices, bills and statements respecting the
foregoing items, the payments made under this paragraph shall be applied by
Mortgagee for the purposes for which they are made. In addition to the escrows
for taxes and insurance, Mortgagor shall deposit with Mortgagee, in Mortgagor's
account all security deposits relating to the Premises which shall be returned
as and when tenants are entitled thereto. Upon and during the continuance of an
Event of Default by Mortgagor, Mortgagee may, at its option, but without
obligation on its part so to
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do, apply all amounts held (other than security deposits which shall be held for
the purpose intended) toward the payment of taxes, assessments and insurance
premiums and/or toward the payment of any amounts payable by Mortgagor to
Mortgagee under this Mortgage and/or toward the payment of the Indebtedness or
any portion thereof, whether or not the same is then due and payable.
8. PERFORMANCE BY MORTGAGEE. If an Event of Default shall occur and be
continuing with respect to the obligations of Mortgagor in the payment of any
taxes or assessments or in making repairs or replacements or in procuring and
maintaining insurance and paying the premiums therefor, or in keeping or
performing any other covenant, term or condition hereof, Mortgagee may, at its
option and without any obligation on its part so to do, pay the taxes and
assessments, make such repairs and replacements, effect such insurance, pay the
premiums, and perform any other covenant, term or condition of Mortgagor herein.
All amounts expended by Mortgagee hereunder shall be secured hereby and shall be
due and payable by Mortgagor to Mortgagee forthwith on demand, with interest
thereon at the rate at which interest accrues in the Notes on amounts after the
same become due.
9. STATUTORY WASTE. Nonpayment of any taxes or assessments levied or
assessed upon the Premises, except to the extent being contested by an
appropriate proceedings being diligently pursued by Mortgagor, or nonpayment of
any insurance premium upon any insurance policy relating to the Premises, or any
part thereof, shall constitute waste, and shall entitle Mortgagee to exercise
the remedies afforded by Section 600.2927 of the Michigan Revised Judicature Act
of 1961, as now or hereafter amended, and by any other statute or law now or
hereafter in effect. Mortgagor hereby consents to the appointment of a receiver
should Mortgagee elect such remedy.
10. PAYMENT OF MORTGAGEE COSTS. In the event that Mortgagee is made a
party to any suit or proceedings instituted after the date hereof by reason of
the interest of Mortgagee in the Premises, or if Mortgagee is required to
arbitrate or negotiate any claim asserted against it by reason of its interest
in the Premises, whether or not such claim results in a suit or proceeding,
Mortgagor shall reimburse Mortgagee for all costs and expenses, including
reasonable attorneys' fees. All amounts incurred by Mortgagee hereunder shall be
secured hereby and shall be due and payable by Mortgagor to Mortgagee forthwith
on demand, with interest thereon at the rate at which interest accrues on the
Notes on amounts after the same become due. Wherever in this Mortgage or in any
other Loan Document an obligation is imposed upon Mortgagor to pay the
reasonable attorney's fees of Mortgagee, such fees shall be deemed to include
all reasonable fees incurred, whether such fees are incurred in consulting an
outside or in-house attorney or in a proceeding of any kind and if in a
proceeding, whether at the trial or appellate stages.
11. DEFAULT AND REMEDIES.
A. Any Event of Default as defined in the Credit Agreement, shall
constitute an Event of Default hereunder.
B. Mortgagee may at any time after the occurrence and during the
continuance of any Events of Default (i) without further notice, declare the
Indebtedness, including the then
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applicable prepayment premium, if any, (acceleration being the same as voluntary
prepayment) to be due and payable immediately; (ii) exercise any and all other
rights and remedies provided by this Mortgage or the Notes or by any other
document, instrument or agreement executed in connection herewith, or by law,
including appointment of a receiver to which appointment Mortgagor consents.
Mortgagor acknowledges that the commencement of foreclosure proceedings shall be
deemed acceleration. Mortgagee shall have the right from time to time to xxx for
any sums whether interest, damages for failure to pay principal or any
installment thereof, taxes, installments of principal, or any other sums
required to be paid under the terms of this Mortgage, as the same become due,
without regard to whether or not the principal sum secured or any other sums
evidenced by the Notes or secured by this Mortgage shall be due, and without
prejudice to the right of Mortgagee thereafter to bring an action of
foreclosure, or any other action, for a default or defaults by the Mortgagor
existing at the time such earlier action was commenced. Any payment made in
accordance with the terms of this Mortgage by any person at any time liable for
the payment of the whole or any part of the sums now or hereafter secured by
this Mortgage, or by any subsequent owner of the Premises, or by any other
person whose interest in the Premises might be prejudiced in the event of a
failure to make such payment, or by any stockholder, officer or director of a
corporation which at any time may be liable for such payment or may own or have
such an interest in the Premises, shall be deemed, as between the Mortgagee and
all persons who at any time may be liable as aforesaid or may own the Premises,
to have been made on behalf of all such persons.
C. Any failure by the Mortgagee to insist upon the strict performance
by the Mortgagor of any of the terms and provisions hereof shall not be deemed
to be a waiver of any of the terms and provisions hereof, and the Mortgagee,
notwithstanding any such failure, shall have the right thereafter to insist upon
the strict performance by the Mortgagor of any and all of the terms and
provisions of this Mortgage to be performed by the Mortgagor.
D. Neither the Mortgagor nor any other person now or hereafter
obligated for the payment of the whole or any part of the Indebtedness shall be
relieved of such obligation by reason of the failure of the Mortgagee to comply
with any request of the Mortgagor or of any other person so obligated to take
action to foreclose this Mortgage or otherwise enforce any of the provisions of
this Mortgage or of any obligations secured by this Mortgage, or by reason of
the release, regardless of consideration, of the whole or any part of the
security held for the Indebtedness, or by reason of any agreement or stipulation
between any subsequent owner or owners of the Premises and the Mortgagee
extending the time of payment or modifying the terms of the Loan Documents
without first having obtained the consent of the Mortgagor or such other person.
In the latter event, the Mortgagor and all such other persons shall continue to
be liable to make such payments according to the terms of any such agreement of
extension or modification unless expressly released and discharged in writing by
the Mortgagee.
E. Regardless of consideration, and without the necessity for any
notice to or consent by the holder of any subordinate lien on the Premises, the
Mortgagee may release the obligation of anyone at any time liable for any of the
Indebtedness or any part of the security held for the Indebtedness and may
extend the time of payment or otherwise modify the terms of the Loan Documents
without, as to the security or the remainder thereof, in anywise impairing or
affecting the lien of this Mortgage or the priority of such lien, as security
for the payment of the
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Indebtedness as it may be so extended or modified, over any subordinate lien.
Mortgagee may resort for the payment of the Indebtedness to any other security
therefor held by the Mortgagee in such order and manner as the Mortgagee may
elect.
12. POWER OF SALE. Upon and during the continuance of an Event of
Default, power is granted to Mortgagee to sell the Premises or any part thereof
at public auction, and to convey same to the purchaser after notice as required
by the statutes of the State of Michigan for foreclosure of mortgages by
advertisement being Sections 600.3201 et seq., Michigan Compiled Laws, as
amended. Upon and during the continuance of an Event of Default, Mortgagee shall
have the remedies of a secured party under the Michigan Uniform Commercial Code,
including without limitation, the right to notify account debtors and to collect
or compromise or xxx for collection of all or any Accounts and General
Intangibles and Goods by any lawful means. For the purpose of taking possession
of the Fixtures and Goods, Mortgagee may enter upon any premises on which the
Fixtures and Goods or any part thereof may be situated and hold the Fixtures and
Goods upon the Premises (without charge to Mortgagee), or dispose of the
Fixtures or Goods on the Premises, or remove the same to such other place or
places as Mortgagee shall determine. Upon demand by Mortgagee, Mortgagor shall
assemble the Fixtures and Goods and make them available to Mortgagee at the
Premises. Any requirement of notice under the Michigan Uniform Commercial Code
shall be met if such notice is mailed to Mortgagor, postage prepaid, at least
ten (10) days before the event with respect to which notice is required.
Mortgagee shall be entitled to recover all expenses incurred by Mortgagee in
retaking, holding, preparing for sale, selling and collecting the Fixtures,
Goods, Accounts and General Intangibles, together with reasonable attorneys'
fees and other expenses incurred by Mortgagee in protecting and enforcing its
rights and remedies with respect to the Indebtedness, the Fixtures, Goods,
Accounts and General Intangibles.
WARNING - THIS PARAGRAPH 12. CONTAINS A WAIVER OF IMPORTANT LEGAL RIGHTS.
This Mortgage contains a power of sale which permits the Mortgagee to
cause the Premises to be sold in the event of a default. The Mortgagee may elect
to cause the Premises to be sold by advertisement rather than pursuant to court
action, and Mortgagor hereby voluntarily and knowingly waives any right
Mortgagor may have by virtue of any applicable constitutional provision or
statute to any notice or court hearing prior to the exercise of the power of
sale, except as may be expressly required by the Michigan statute governing
foreclosures by advertisement. In addition, Mortgagor, to the extent permitted
by law, hereby knowingly and voluntarily waives any right Mortgagor may have to
remain in possession of the Premises or to collect any rents or income therefrom
during the pendency of any foreclosure proceedings and during any applicable
redemption period. Also, paragraph 17. entitles the Mortgagee to require
immediate payment of the balance of the Indebtedness in full if the Premises are
sold or otherwise transferred without the prior written consent of Mortgagee. By
execution of this Mortgage, the Mortgagor represents and acknowledges that the
meaning and consequences of this paragraph have been discussed as fully as
desired by the Mortgagor with the Mortgagor's legal counsel.
13. DISTRIBUTION UPON SALE. Upon a foreclosure sale of the Premises or
any part thereof, the proceeds of such sale shall, subject to applicable law, be
applied in such order as Mortgagee elects:
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12
(a) To the payment of all costs of the suit or foreclosure,
including reasonable attorneys' fees and the cost of title
searches and abstracts;
(b) To the payment of all other expenses of Mortgagee, including
all monies expended by Mortgagee and all other amounts payable
by Mortgagor to Mortgagee hereunder, with interest thereon;
(c) To the payment of all other Indebtedness including the
interest thereon;
(d) To the payment of the surplus, if any, to Mortgagor or to
whomsoever shall be entitled thereto.
14. SALE IN PARCELS. Upon any foreclosure sale of the Premises, the
same may be sold either as a whole or in parcels, as Mortgagee may elect and, if
in parcels, the same may be divided as Mortgagee may elect and, at the election
of Mortgagee, may be offered first in parcels, in any manner or order as
Mortgagee may elect in its sole discretion, and then as a whole, any law,
statutory or otherwise, to the contrary notwithstanding, and Mortgagor hereby
waives the right to require any such sale to be made in parcels or the right to
select such parcels.
15. EMINENT DOMAIN. In the event there is a proceeding relating to the
Premises or any part thereof under the power of eminent domain, the entire award
rendered in such proceeding or any settlement of such proceeding shall be paid
to Mortgagee to be applied in accordance with the Credit Agreement.
16. ASSIGNMENT OF LEASES AND RENTS. A. As additional security for the
payment of the Indebtedness and the performance of the covenants, terms and
conditions contained herein and in any other Loan Document, Mortgagor does
hereby assign, mortgage and warrant to Mortgagee, all rents, income and profits
of the Premises and all present and future leases pertaining thereto and all
guarantees of the tenant's obligations thereunder, together with the right in
the Mortgagee to enforce the leases, to take possession of the Premises and
every part thereof, and to collect the rents and profits and to apply the same,
as hereinafter provided. Notwithstanding this assignment, until an Event of
Default occurs, Mortgagor shall have the right to collect the rents, profit and
income of the Premises.
B. Mortgagor shall not, without the prior written consent of Mortgagee,
accept any prepaid rent under any lease of the Premises except for the then
current month and security deposits; nor shall Mortgagor enter into any new
lease of the Premises or any part thereof except in accordance with a form of
lease approved in advance by Mortgagee. Mortgagor shall not take or suffer any
actions which would effectuate a merger of a lease with a fee so as to terminate
the lessee's obligations. Any act in violation of this paragraph 16. B. shall be
void and of no effect.
C. Mortgagor shall perform all of the obligations of the lessor under
all leases of the Premises or any part thereof in accordance with the terms and
provisions thereof and shall not suffer or permit any impairment of the security
thereof. Mortgagor shall manage the Premises and every part thereof in
accordance with sound business practices. Mortgagor shall promptly
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13
take such actions as are reasonable and prudent to enforce the lessee's
obligations under any lease. Mortgagee shall have no obligations, responsibility
or liability of lessor under any lease assigned hereby, and shall have no
obligation to account for any security deposit unless the same has been actually
deposited with Mortgagee.
D. Mortgagor shall deliver to Mortgagee within ten (10) days after
written request from Mortgagee a statement in writing setting forth the names of
the tenants of the Premises, the expiration dates of the leases, and the amounts
of rents and any other sums due thereunder, and together therewith shall furnish
to Mortgagee copies of all such leases. Mortgagor shall, upon written request,
execute and deliver to Mortgagee such other and further documents as may be
reasonably appropriate to confirm the assignment of rents, profits, and leases
made hereby.
E. Upon an Event of Default, Mortgagee may, pursuant to the assignment
herein contained, and in addition to exercising any and all other rights and
remedies provided by this Mortgage or by law, including the appointment of a
receiver (to which appointment Mortgagor consents), or by any other Loan
Document, with or without foreclosure or entry upon the Premises, demand,
collect, xxx for, receive, compromise, and compound all rents, income and
arrears of rent as may then or thereafter be due and owing from the tenants,
occupiers, lessees or assignees of any lessees of the Premises and Mortgagor
hereby authorizes and directs the tenants, occupiers, lessees or assignees of
any lessees of the Premises to make payment to Mortgagee of rent and any other
sums then due and to become due under the leases upon receipt of written demand
therefor by Mortgagee, without liability for the determination of Mortgagee's
rights thereto. In such event, Mortgagee shall have the power, either directly
or through a rental agent selected by Mortgagee, to operate, maintain and repair
the Premises, and to amend any lease and to exercise any and all rights of
Mortgagor with respect to any lease; and out of the rents and income thus
received, after the payment of all costs and expenses of Mortgagee, to retain
all sums then or thereafter due hereunder, and also a commission of six percent
(6%) upon all such rents and income thus collected as compensation for its
services in making such collections. The rights and powers of Mortgagee
hereunder shall continue and remain in full force and effect until all amounts
due Mortgagee hereunder, including any deficiency resulting from foreclosure
sale, are paid in full, and shall continue after commencement of foreclosure and
after foreclosure sale and until expiration of any applicable period of
redemption, notwithstanding the sale of the Premises to a purchaser other than
Mortgagee. Mortgagee shall not be liable to Mortgagor or anyone claiming under
or through Mortgagor by reason of anything done or left undone by Mortgagee
hereunder, except for damage resulting from willful misconduct of Mortgagee.
F. Mortgagor covenants, represents and warrants to Mortgagee that
Mortgagor has not executed any prior assignment of the leases of the Premises,
or of the rents, profits and income of the Premises except to Mortgagee and
Mortgagor covenants it will not hereafter execute any such assignment until such
time as all Indebtedness secured hereby is fully paid and satisfied.
G. Mortgagor agrees that no holder of any subordinate lien shall have
any right to terminate any lease of any portion of the Premises whether or not
such lease is subordinate to this Mortgage.
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17. TRANSFER OF MORTGAGOR'S INTEREST. Except to the extent provided in
the Credit Agreement, it shall be an Event of Default hereunder if, without
Mortgagee's prior written consent, Mortgagor shall at any time cease to be the
holder of the entire record title to and beneficial interest in the Premises or
any part thereof, whether by sale or any other means whatsoever, or any lien or
encumbrance is placed upon the Premises, even if inferior hereto, or Mortgagor
executes any contract of sale or transfers possession of the Premises or any
part thereof or assigns the right to receive the Rents.
18. SECURITY AGREEMENT/FINANCING STATEMENT. This Mortgage is a
continuing collateral mortgage, security agreement, fixture filing and financing
statement under the Michigan Uniform Commercial Code. This instrument is also to
be indexed in the index of fixture filings and financing statements. This
instrument covers goods which are or are to become fixtures on the Premises. The
names of the debtor and the secured party, the mailing address of the secured
party from which information concerning this security interest may be obtained,
the mailing address of the debtor and a statement indicating the types, or
describing the items, of collateral, are as described herein, in compliance with
the requirements of the Michigan Uniform Commercial Code. The Mortgagor's
taxpayer identification number is 00-0000000. A copy of this Mortgage may be
filed as a financing statement.
19. CUMULATIVE REMEDIES. Each and every one of the rights, remedies and
benefits provided to Mortgagee herein or in any other Loan Document shall be
separate, distinct and cumulative and shall not be exclusive of any other of
said rights, remedies or benefits, or of any other rights, remedies or benefits
allowed by law. Any waiver by Mortgagee of any default shall not constitute a
waiver of any similar or other default. No act of the Mortgagee shall be
construed as an election to proceed under any one provision herein to the
exclusion of any other provision.
20. BINDING EFFECT. All of the covenants and conditions hereof shall
run with the land and shall be binding upon the successors and assigns of
Mortgagor, and shall inure to the benefit of the successors and assigns of
Mortgagee. Any reference herein to "Mortgagee" and "Mortgagor" shall include the
successors and assigns of each.
21. SEVERABILITY. The invalidity of any of the covenants, phrases or
clauses in this Mortgage shall not affect the remaining portions hereof, and
this Mortgage shall be construed as if such invalid covenant, phrase or clause
had not been contained herein.
22. JOINT AND SEVERAL LIABILITY. If Mortgagor consists of more than one
party, the term "Mortgagor" shall include all such parties and they shall be
jointly and severally liable under any and all obligations, covenants and
agreements of the Mortgagor contained herein.
23. MORTGAGOR'S CERTIFICATE. Mortgagor, upon Mortgagee's request, shall
certify, by a writing duly acknowledged, to the Mortgagee or to any proposed
assignee of this Mortgage, the amount of the Indebtedness then owing and whether
any offsets, counterclaims or defenses exist against the Indebtedness, within
ten (10) days after the request is made.
24. EFFECT OF HEADINGS. The headings of each paragraph are descriptive
only and have
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no legal effect.
25. COUNTERPARTS. This Mortgage may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which shall
together constitute one and the same instrument.
26. GOVERNING LAW. This Mortgage shall be governed by and construed and
interpreted in accordance with the laws of the State of Michigan.
In the Presence of: TALON AUTOMOTIVE GROUP, INC.
By:
------------------------------------ -------------------------------
Its:
------------------------------------ ------------------------------
COMERICA BANK, as Agent under the
Credit Agreement
By:
------------------------------------ -----------------------------------
Its:
------------------------------------ ----------------------------------
- 00 -
00
XXXXX XX XXXXXXXX )
: ss.
COUNTY OF XXXXX )
The foregoing instrument was acknowledged before me this ____ day of
April, 1998, by ____________________, the _________________________ of Talon
Automotive Group, Inc., a Michigan corporation, on behalf of said entity.
__________________________________________
Notary Public, Xxxxx County, Michigan
My Commission Expires: ___________________
STATE OF MICHIGAN )
: ss.
COUNTY OF XXXXX )
The foregoing instrument was acknowledged before me this ____ day of
April, 1998, by ____________________, a Vice President of Comerica Bank, as
Agent under the Credit Agreement, on behalf of said entity.
__________________________________________
Notary Public, Xxxxx County, Michigan
My Commission Expires: ___________________
Drafted by and when recorded return to:
Xxxxxxx X. Xxxxxxx, Esq.
Miller, Canfield, Paddock and Stone
000 Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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EXHIBIT A
LEGAL DESCRIPTION
PARCEL I:
Part of the Xxxxxxxxx 0/0 xx Xxxxxxx 0, Xxxx 0 Xxxxx, Xxxxx 00 East, more
particularly described as, beginning at a point in the East and West 1/4 line of
Section 5, distant North 88 degrees 37 minutes 30 seconds East 180 feet from the
West 1/4 corner of Section 5; thence North 88 degrees 37 minutes 30 seconds East
513.81 feet along the East and West 1/4 line of Section 5; thence North 1 degree
28 minutes 40 seconds West 1346.13 feet; thence South 88 degrees 38 minutes 00
seconds West 520.02 feet to a point which is 180 feet East of the West line of
Section 5; thence South 01 degrees 47 minutes 0 seconds East 1346.27 feet
parallel to and 180 feet East of the West line of Section 5 to the point of
beginning, and except the North 60 feet thereof.
Parcel Identification No. 00-00-000-000
PARCEL II:
Land in the City of Royal Oak, Oakland County, Michigan, described as: Part of
the Xxxxxxxxx 0/0 xx Xxxxxxx 0, Xxxx 0 Xxxxx, Xxxxx 00 East, described as:
Beginning on the West line of Section 5, South 1 degree 07 minutes East 703.5
feet from the Northwest corner of the Section; thence North 88 degrees 38
minutes East 120 feet; thence South 1 degree 07 minutes East 620.78 feet; thence
South 88 degrees 38 minutes West 120 feet to the West line of the section;
thence North 1 degree 07 minutes West 620.78 feet to the point of beginning.
Parcel Identification No. 00-00-000-000
PARCEL III:
Part of the Northwest 1/4 of Section 5, beginning on the West line of Section,
South 1 degree 07 minutes East 1384.28 feet from the Northwest corner of
section, thence North 88 degrees 38 minutes, East 120 feet, South 1 degree 07
minutes East, 616 feet, South 88 degrees 38 minutes West 120 feet to West line
of section, North 1 degree 07 minutes West 616 feet to the point of beginning.
Parcel Identification No. 00-00-000-000
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EXHIBIT B
PERMITTED ENCUMBRANCES
Those encumbrances listed on Schedule B of Lawyer Title Insurance
Coporation Commitment for Title Insurance No. 018268.
Mortgage dated April 28, 1998, to Xxxxxxx X.X. Xxxxxx, individually amd
as Trustee for the Xxxxxxx X.X. Xxxxxx Revocable Living Trust u/a/d December 17,
1996.
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